Orissa High Court
Bramhananda Nayak vs Jhili Swain on 11 November, 2025
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.4314 of 2024
Bramhananda Nayak ..... Appellant
Represented By Adv. -
Mr. Amiya Kumar
Mohanty
-versus-
Jhili Swain ..... Respondent
Represented By Adv. -
Mr. Amitav Tripathy,
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA
ORDER
11.11.2025
Order No.
05. 1. This matter is taken up through Hybrid Arrangement (Virtual
/Physical Mode).
2. Heard Mr. Amiya Kumar Mohanty, learned counsel appearing
for the Petitioner as well as Mr. Amitav Tripathy, learned counsel
appearing for the sole Opposite Party.
3. By filing the present application under Section 528 of B.N.S.S.,
2023, the Petitioner-husband has approached this Court with a prayer
for quashing of the entire proceeding against him under Section 144 of
B.N.S.S., 2023 in Crl.M.P. No.114 of 2024 pending in the file of
learned Judge, Family Court, Nayagarh.
4. Mr. A.K. Mohanty, learned counsel appearing for the Petitioner-
husband, at the outset, contended that the sole Opposite Party filed an
application under Section 144 of B.N.S.S., 2023 seeking interim
maintenance before the learned Judge, Family Court, Nayagarh. The
same was registered as Crl.M.P. No.114 of 2024. Pursuant to the
summons issued by the trial court, the Petitioner appeared before the
trial court. Mr. Mohanty, learned counsel for the Petitioner, at this
juncture, referred to the address of the Petitioner at various places in
the brief and stated before this Court that the present case is a case of
mistaken identity. He further explained that the Petitioner has no
relationship with the Opposite Party. Therefore, the claim of the
interim maintenance of the Opposite Party is not maintainable in law.
He further contended that in order to avail the interim maintenance
under Section 144 of B.N.S.S., 2023, the sole Opposite Party is
required to establish her relationship with the Petitioner. Further, there
is no such evidence on record to establish the relationship between the
Petitioner and the Opposite Party.
5. Learned counsel for the Petitioner emphatically disputed the
relationship as has been claimed by the sole Opposite Party in her
application under Section 144 of B.N.S.S., 2023. As such, it was
argued that the claim for interim maintenance is absolutely baseless
and the proceeding initiated at the instance of sole Opposite Party is not
maintainable in law. In course of argument, learned counsel for the
Petitioner referred to the judgment in Amresh Tiwari v. Lalta Prasad
Dubey & Anr., reported in AIR 2000 SC 1504 to impress upon this
Court the position of law that it is not the case that in all instances
where a civil suit is filed, Section 145 of Cr.P.C. proceeding would
never lie, instead, it is only in cases where civil suit is for possession or
for declaration of the title in respect of the same property and where
only relief regarding protection of the property concerned can be
applied for and granted by the civil court that the proceedings under
Section 145 of Cr.P.C. should not be allowed to continue. This, as per
the Hon'ble Apex Court, it because the civil court is competent to
decide the question of title as well as possession between the parties
and the orders of the civil court would be binding on the Magistrate.
6. By applying the aforesaid principle of law, learned counsel for
the Petitioner argued that since the relationship is disputed, therefore,
the question of grant of interim maintenance can be decided only after
an examination of the relationship between the Petitioner and the sole
Opposite Party by the competent court. Learned counsel for the
Petitioner also referred to judgments of different High Courts on the
point of law that the Claimant-Wife has to first establish her
relationship with the Petitioner as wife before claiming any interim
maintenance. On such ground, learned counsel for the Petitioner
contended that the application filed by the wife for interim maintenance
is not maintainable in law.
7. Mr. Tripathy, learned counsel appearing for the sole Opposite
Party, on the other hand, contended that the present application has
been filed at the instance of the Petitioner-husband only to linger the
proceeding under Section 144 of B.N.S.S., 2023. He further submitted
that the application for grant of interim maintenance has been filed
since long, however, the Petitioner by taking different plea is avoiding
adjudication of such application. He also referred to an order passed by
a coordinate Bench of this Court in CRLMP No.246 of 2025 filed at
the instance of the sole Opposite Party against the Petitioner wherein a
coordinate Bench of this Court, vide order dated 20.06.2025, has been
pleased to direct the learned Judge, Family Court, Nayagarh to dispose
of the Crl.M.P. No.114 of 2024 as expeditiously as possible, preferably
within a period of two months. Learned counsel for the sole Opposite
Party further submitted that it is needless to argue that while
adjudicating the proceeding under Section 144 of B.N.S.S., 2023, the
trial court is required to examine the relationship between the Petitioner
and the sole Opposite Party. On such ground, learned counsel for the
sole Opposite Party contended that the present application is devoid of
merit and, accordingly, the same should be dismissed.
8. Having heard the learned counsels appearing for the respective
parties and on a careful examination of the background facts, further
taking into consideration the submissions made by Mr. Mohanty,
learned counsel appearing for the Petitioner, this Court found that the
present Petitioner, against whom the sole Opposite Party has
approached the trial court for grant of interim maintenance under
Section 144 of BNSS, 2023, has filed this application with a prayer for
dismissal of such application for interim maintenance on the ground of
maintainability. The main plank of argument of the learned counsel for
the Petitioner is that the Petitioner has no relationship with the sole
Opposite Party.
9. Considering the aforesaid submission of the learned counsel for
the Petitioner and the apprehension expressed before this Court, this
Court is of the view that the trial court while deciding an application
under Section 144 of B.N.S.S., 2023 is required to look into the
relationship of the parties and, only after prima facie establishment of
such relationship, can a final order be passed while adjudicating the
application under Section 144 of B.N.S.S., 2023.
10. In view of the above settled position of law, this Court is of the
view that the matter does not required any further clarification other
than that which has been expressed hereinabove. Accordingly, the
present CRLMC application is disposed of by directing the trial court
to adjudicate the application under Section 144 of B.N.S.S., 2023 of the
sole Opposite Party, bearing Crl.M.P. No.114 of 2024, as expeditiously
as possible, preferably within three months from today. However, it is
made clear that while adjudicating such application, the trial court shall
follow the established procedure and only upon a prima facie
satisfaction of the relationship between the parties shall pass necessary
orders in accordance with law.
11. With the aforesaid observation and direction, the application
stands disposed of.
( A.K. Mohapatra)
Judge
Debasis
