[Cites 12, Cited by 0]
Orissa High Court
Tirthajani Panda vs Bibhuti Shankar Padhi ...... Opposite ... on 23 December, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No. 523 of 2023
An application under Sections 397 of the Cr.P.C. read with Section 401 of
the Code of Criminal Procedure challenging the order dated 16.09.2022
of learned J.M.F.C.(R), Rourkela in Misc. Case No. 276 of 2014 and the
judgment dated 18.08.2023 of learned 2nd Additional Sessions Judge,
Rourkela in Criminal Appeal No. 33 of 2022.
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Tirthajani Panda ...... Petitioner
-versus-
Bibhuti Shankar Padhi ...... Opposite Party
---------------------------------------------------------------------------
For Petitioner : Mr. Anam Charan Panda, Advocate
For Opp. Party : Mr. Soughat Dash, Advocate
with Mr. Anupam Das, Advocate
----------------------------------------------------------------------------
CORAM:
HON'BLE MISS JUSTICE SAVITRI RATHO
JUDGMENT
23.12.2025
Savitri Ratho, J This Revision has been filed challenging the judgment
dated 18.08.2023 passed by the learned 2nd Additional Sessions
Judge, Rourkela in Criminal Appeal No. 33 of 2022 dismissing the
appeal and confirming the order dated 16.09.2022 passed in Misc.
Case No. 276 of 2014 by the learned Judicial Magistrate First Class
(Rural), Rourkela (in short, "JMFC(R)") rejecting the application
of the Petitioner for striking off the defence of the Opposite Party
on the ground that he has not complied with the order dated
02.12.2015 of the Court and not paid an amount of Rs.10,000/- per
month towards interim maintenance allowance to the Petitioner
(aggrieved person) within 15 days of every succeeding month.
CASE OF THE AGGRIEVED PERSON
2. Petitioner is the wife of the Opposite Party, and their
marriage was solemnized on 23.06.2010 at Shaktinagar, Kalyan
Mandap as per the Hindu custom and rites and dowry articles etc.
were given at the time of marriage. Soon after the marriage, she
was ill-treated by the Opposite Party and his family members,
demanding further dowry. Her pregnancy got terminated due to
assault by the Opposite Party. Intervention of the family members
became fruitless and finally the Petitioner prosecuted her study at
Sambalpur University in Sociology, on the proposal of the
Opposite Party that he would bear her educational expenses.
Believing such commitment, she continued her Post Graduate
Course but the Opposite Party only paid Rs 3,000/- although he
had made commitment to pay the entire educational expenses. In
the meantime, the Opposite Party filed a divorce suit vide CP No.
151 of 2014 in the Family Court, Rourkela on false allegations.
The Petitioner also alleged that the Opposite Party is having illicit
relationship with another lady.
3. The Petitioner filed CRLMC No. 276 of 2014 in the
Court of the learned JMFC(R) under Section 12 of the Protection
of Women from Domestic Violence Act, 2005 (in short, "PWDV
Act"). The Petitioner entered appearance on 12.12.2014, filed his
show cause but thereafter was set ex-parte as he did not take any
steps. The Petitioner filed an application seeking for payment of
interim maintenance allowance from the Opposite Party.
INTERIM MAINTENANCE ORDER
4. On 02.12.2015, the learned JMFC(R), keeping in view
the residential situation of the Petitioner and the expenses with
regard to her study passed an ex-parte order directing the Opposite
Party to pay an amount of Rs.10,000/- per month in favour of the
Petitioner towards interim maintenance. It was also directed that
the allowances shall be paid by the Opposite Party, to the
aggrieved person (Petitioner) within 15 days of every succeeding
month.
5. Thereafter, by ex parte judgment dated 01.10.2016 the
learned J.M.F.C(R) disposed of the CRLMC No. 276 of 2014
finally, directing the Opposite Party to pay Rs.10,000/- per month
towards the educational and other expenses of the Petitioner for a
period of 18 months to complete her M. Phil course. The learned
JMFC(R) also directed the Opposite Party to pay a compensation
of Rs.50,000/- to the Petitioner for the mental agony caused to her
due to the acts of domestic violence by the Opposite Party,
respondent therein.
APPELLATE COURT JUDGMENT
6. The Opposite Party preferred an appeal challenging the
judgment dated 01.10.2016 in the Court of the learned 1st
Additional Sessions Judge, Rourkela vide Criminal Appeal
No.12/2017. The learned Appellate Court set-aside the ex-parte
judgment dated 01.10.2016 and directed the Opposite Party to
deposit a sum of Rs.50,000/- (Rupees fifty thousand) only before
the learned Trial Court on or before 11.09.2017. But as the
Opposite Party failed to comply the said order dated 06.09.2017
the learned JMFC(R)issued NBW as well as distress warrant
against him on 06.12.2019 in Misc. Case No.33/2017 filed by the
Petitioner for execution. The Opposite Party preferred appeal in the
Court of the 1st Additional Sessions Judge, Rourkela vide Criminal
Appeal No.01 of 2020 and pursuant to order dated 06.12.2019 of
the learned Appellate Court, the Opposite Party deposited
Rs.65,000/- (Rupees sixty-five thousand) only and participated in
the proceeding in the Court of the learned JMFC(R).
APPLICATION OF THE PETITIONER
7. The Petitioner filed an application in Misc. Case No. 276
of 2014 before the learned Court of J.M.F.C on 25.07.2022 praying
inter alia to strike off the defence of the Opposite Party and to
proceed with the proceeding in accordance with law as the
Opposite Party had failed to deposit monthly maintenance and
arrear maintenance amounting to more than Rs. Seven lakhs as per
direction of the learned J.M.F.C(R) dated 02.12.2015. Objection
was filed by the Opposite Party to the application.
ORDER OF THE MAGISTRATE
8. On 16.09.2022, the learned JMFC(R) dismissed the
application, rejecting the prayer of the Petitioner for striking off the
defence of the Opposite Party, observing as under;
".....It shows that the O.P. has complied all the
direction of the Appellate Court in continuing this
proceeding and the willful neglect as pleaded by the
Petitioner is not substantiated specifically after the
setting aside of the Judgment dated 01/10/2016. So,
this court feels that if the defence from the side of the
O.P. will be struck off then it will cause prejudice to
the O.P. So, as the respondent is sufficiently
followed all the directions of this court so the
decision cited by the Ld. Counsel of the Petitioner is
not applicable to the facts and circumstances to this
case. Accordingly, the petition filed by the Ld
Counsel of the Petition stands rejected. Put up on
27.09.2022 for cross-examination of the Petitioner
by the Ld counsel of the Respondent."
ORDER OF THE APPELLATE COURT
9. The Petitioner challenged the order passed by the learned
J.M.F.C, by filing Criminal Appeal No. 33 of 2022 in the Court of
the learned 2nd Additional Sessions Judge, Rourkela.
10. The learned Appellate Court did not find any irregularity
or illegality in the order of the learned J.M.F.C and confirmed the
order dated 16.09.2022 passed by the J.M.F.C in Misc. Case No.
276 of 2014 and dismissed the appeal on 18.08.2023.
ORDER OF THIS COURT
11. While issuing notice in this Criminal Revision, on
18.10.2023, this Court had called for the LCR and stayed further
proceedings in Misc. Case No. 276 of 2014 in the Court of the
learned J.M.F.C till disposal of the revision.
SUBMISSIONS
12. I have heard learned counsel for the Parties, perused the
written note of submission and the records.
13. Mr. A.C. Panda, learned counsel for the Petitioner has
submitted that the Petitioner is a distressed woman, having no
means of livelihood whereas the Opposite Party has sufficient
means but he is not paying any maintenance to the Petitioner in
spite of the direction of the learned JMFC(R) passed on
02.12.2015. He also submitted that the Petitioner has been
subjected to domestic violence, and is a leading a miserable life. He
further submitted that the Opposite Party has only paid Rs.65,000/-
pursuant to order dated 21.12.2020 of the learned Appellate Court.
He further submitted that the Opposite Party is an able bodied man
and is getting profit of Rs.70,000/- per month from his spare parts
shops namely Subham Auto and Punam Auto situated at Koira
Bazar. Besides that, he is getting Rs.10,000/- from DPS School and
Rs.15,000/- from house rent, so there is no reason as to why he
should not pay monthly maintenance to the Petitioner. Mr. Panda,
learned counsel relied on the following decisions in support of his
submission that the defence of the Opposite Party should be struck
off for non-payment of monthly maintenance:
(i) Rajnesh vs. Neha and another : (2021) 2 SCC 324;
(ii) Experion Developers Private Limited vs. Himanshu
Dewan, Sonali Dewan and others : 2023 INSC 748 : 2023
LiveLaw (SC) 674; and
(iii) Kusheswar Prasad Singh vs. State of Bihar and Ors.
(2007) 11 SCC 447: AIR 2007 SCW 1911.
(iv) Nishant vs. Sonia in Criminal Revision No. 45 of 2013
decided on 27.08.2013 by the Bombay High Court (Nagpur
bench).
14. Mr. S. Dash, learned counsel for the Opposite Party
prayed for the dismissal of the Criminal Revision Petition,
submitting that the Opposite Party has deposited a sum of Rs
65,000/- in compliance with the judgment of learned appellate
court. He contended that the initial ex-parte interim order dated
02.12.2015, directing the Opposite Party to pay Rs.10,000/- per
month had merged with the judgment dated 01.10.2016 directing
for payment of maintenance of Rs.10,000/- for a period of eighteen
months and compensation of Rs.50,000/-. This ex-parte judgment
had been set aside by the Appellate Court directing the Petitioner to
deposit an amount of Rs.50,000/-. This amount was subsequently
enhanced to Rs.65,000/- by the Appellate Court, which has been
paid by the Opposite Party. The learned JMFC(R) has rightly
considered all relevant aspects while rejecting the prayer of the
Petitioner to strike off the defence of the Opposite Party. This order
has been rightly confirmed by the Appellate Court. The two
orders/judgments do not call for any interference. He relied on the
following decisions in support of his submission-
(i) Prem Chandra Agarwal and anr. vs. UP Financial
Corporation and Ors. reported in (2009) 11 SCC 479 and
(ii) Sunil Kumar vs. State of Kerala reported in 2013 SCC
OnLine Kerala 24442.
15. Mr. Anupam Das, learned counsel who had been
requested to assist the Court has cited the decision of the Kerala
High Court in the case of Neethu vs. Trijo Joseph in OP(Crl.) No.
226 of 2022 decided on 16th June 2022.
JUDICIAL PRONOUNCEMENTS
16. In the case of Rajnesh (supra), the Supreme Court has inter
alia held that for non-payment of interim maintenance, the defence
of the respondent is liable to be struck off.
In the case of Experion Developers Private Limited vs.
Himanshu Dewan, Sonali Dewan (supra), the Supreme Court
considered the doctrine of merger and held as follows:
"(iii) The doctrine of merger is not a doctrine of
universal or unlimited application. It will depend on the
nature of jurisdiction exercised by the superior forum
and the content or subject-matter of challenge laid or
capable of being laid shall be determinative of the
applicability of merger........"
In the case of Kusheswar Prasad Singh (supra), the
Supreme Court has held that:-
"It is settled principle of law that a man cannot be
permitted to take undue and unfair advantage of his
own wrong to gain favourable interpretation of law.
It is sound principle that he who prevents a thing
from being done shall not avail himself of the non-
performance he has occasioned. To put it differently,
"a wrong doer ought not to be permitted to make a
profit out of his own wrong".
In the case of Nishant (supra), the Bombay High Court
held that where the husband had claimed that after filing the written
statement, he was unaware of the next date, he was directed to pay
interim maintenance and clear the arrear maintenance.
In the case of Prem Chandra Agarwal (supra), the
Supreme Court held in paragraph 3 as under:-
"3.It is a well-settled principle that once a final
order is passed, all earlier interim orders merge into
the final order, and the interim orders cease to exist.
In this appeal, since the final order has been passed
by the High Court, obviously all interim orders
passed by the High court in the same writ petition
cease to exist automatically. Consequently, any
direction given in the interim order dated 24.4.2004
also ceases to exist. In view of the final order passed
by the High Court, the impugned interim order and
any direction therein have ceased to exist. The
appeal has become infructuous and is, accordingly,
dismissed."
In the case of Sunil Kumar (supra), the Kerala High
Court held that :-
"10. The present application, bn which the
impugned order was passed, was one for realisation
of arrears of maintenance defaulted by the Revision
Petitioner before the passing of final order in
appeal. Put it differently, that is the amount due to
the 2nd respondent for a period in which the
Revision Petitioner disobeyed the earlier interim
order passed by the Magistrate Court. Now he is
claiming benefit of the Appellate Court judgment for
the defaulted period also, which can never be
allowed. The final judgment passed in appeal has
prospective operation only. The learned Magistrate
erroneously found that rate fixed by the Appellate
Court is applicable to a period anterior to that
judgment also. The order under challenge passed by
the Magistrate Court will merge in the judgment of
the Appellate Court on the date of judgment only. It
cannot be applied to a period anterior to that
judgment unless it is otherwise specifically provided
in that judgment. Here, the judgment under
challenge does not provide otherwise. So, he should
have paid maintenance at the rate specified in
interim order for the period in which that interim
order was in force. He cannot claim benefit of the
judgment passed in appeal retrospectively for the
arrear of the defaulted period, in which interim
order was in force. If the argument advanced by the
Revision Petitioner is accepted, it will give undue
advantages to the Revision Petitioner, who was
found contumacious all along the proceedings,
despite the interim order and final order. His
contumaciousriess cannot be justified under the
cover of Appellate Court judgment."
In the case of Neethu (supra), the Kerala High Court held
in paragraph 12 as under:-
"12. The Apex Court in Rajnesh v. Neha and
Another (2020 (6) KHC 1) referring to the
judgments of the High Court on the point upheld the
power of the court to strike off the defence if there
was non-compliance with the order of payment of
maintenance. It was, however, held that striking off
the defence is an order which ought to be passed in
the last resort, if the court finds default to be wilful
and contumacious, particularly to a dependent
unemployed wife and minor child. The Division
Bench of this Court recently in Shyju v. Nadeera
(2021(5) KLT 693) has held that the Family Court
can strike off the defence on failure to pay interim
maintenance ordered by the court where the default
is found to be wilful. For all these reasons, I hold
that in a proceeding under the DV Act, the defence
can be struck off for non-compliance with an order
of payment of pendente lite maintenance if the
default is found to be deliberate and wilful.
However, such an order ought to be passed only as a
last resort as held in Rajnesh (supra)."
As pointed out by Lord Russel C.J. in Reg. vs.
Senior and affirmed by Cave L. C. in Tamboli vs. G.l.P. Railway,
„wilfully‟ means that:
"the act is done deliberately and intentionally, not
by accident or inadvertence, but so that the mind of
the person who does the act goes with it".
Thus, striking off a defence is justified only when:
i) There is clear and persistent disobedience of court
orders,
ii) The conduct is deliberate and contumacious,
iii) There is no other effective remedy to secure
compliance.
ANALYSIS AND CONCLUSION
17. From a reading of the decisions referred to above , it is
apparent that in matrimonial cases, defence of a party( usually the
husband) can be struck off for non-compliance of the order to pay
maintenance, if non-compliance is found to be willful and
contumacious. But such an order should be passed, as a last resort
as it is a drastic step and only after affording the party concerned a
chance to comply with the order for payment of maintenance.
18. The legal position is also settled that a litigant cannot take
advantage of his own wrong.
19. After hearing learned counsel for the Parties, perusing the
records and the decisions relied on by the parties, I am satisfied
that the interim order dated 02.12.2015 had merged with the final
order dated 01.10.2016 passed in Misc. Case No. 276 of 2014. The
final order was set aside by the learned Additional Sessions Judge
in Criminal Appeal No. 12 of 2017 filed by the Opposite Party
permitting him to participate in the proceedings after depositing
Rs.50,000/-. This amount was increased to Rs 65,000/- as the
Opposite Party did not deposit Rs 50,000/- in time. The amount of
Rs.65,000/- has been deposited / paid by the Opposite Party. I am
therefore unable to accept the submission of the learned counsel for
the petitioner that the Opposite Party has defaulted in payment of
interim maintenance for which his defence should be struck off. So
I do not find any infirmity or illegality in the order dated
16.09.2022 passed in Misc. Case No. 276 of 2014 by the learned
JMFC(R) or the order dated 18.08.2023 passed in Criminal Appeal
No. 33 of 2022 by the learned 2nd Additional Sessions Judge,
Rourkela.
20. But after hearing the learned counsel and perusing the
records, I find that the proceedings under Section 12 of the PWDV
Act is still pending on account of the default in appearance of the
Opposite Party. On account of his default in appearance, ex parte
order to pay interim maintenance had been passed and thereafter ex
parte final judgment had been passed. This judgment was set aside
in an appeal filed by the Opposite Party. He was allowed to
participate in the proceedings on depositing Rs 50,000/-. But he did
not deposit the amount within the time fixed for which warrant had
been issued against him and the amount to be deposited by him was
increased to Rs 65,000/-. This amount has been deposited by him.
But this Court cannot allow him to take advantage of his own
wrong(default) in paying interim maintenance to the Petitioner.
21. At the time of filing of the case under Section 12 of the
PWDV, the Petitioner had claimed to be distressed woman with no
independent means of livelihood and means to pursue her studies.
She had complained of being subjected to mental and physical
suffering due to domestic violence. So the learned JMFC(R) is
directed not to grant unnecessary adjournments and is requested to
make an endeavour to dispose of the proceeding within a period of
six months of receipt of certified copy of this judgment. The parties
are directed to co-operate for expeditious disposal of the
proceeding.
22. As the Opposite Party cannot be allowed to benefit from
his own wrong and thereby deprive the Petitioner from interim
maintenance, it is, therefore, directed that the Opposite Party shall
pay monthly interim maintenance to the Petitioner with effect from
January 2026. The amount is to be paid by the 7th of each
succeeding month. The Opposite Party shall also deposit an
amount of Rs.50,000/- within a period of four months towards
arrear maintenance which shall be released in favour of the
Petitioner.
23. If the proceedings are not disposed of within a period of
six months, payment of monthly maintenance beyond the period of
six months will be subject to the satisfaction of the learned JMFC
(Rural), Rourkela that the Petitioner is not responsible for the delay
in disposal of the proceeding.
24. The Criminal Revision is disposed of with the aforesaid
observation.
25. Copy of this judgment be communicated to the learned
JMFC(Rural), Rourkela forthwith.
...........................
(Savitri Ratho)
Judge
Orissa High Court, Cuttack.
Dated, the 23rd December, 2025 .
Subhalaxmi, Junior Stenographer.
Signed by: SUBHALAXMI PRIYADARSHANI
Location: Orissa High Court, Cuttack
Date: 25-Dec-2025 20:25:45
