G.Debendra Rao vs G.Puspa Prabha Rao & Another .... ...
2025 Latest Caselaw 8276 Ori

Orissa High Court

G.Debendra Rao vs G.Puspa Prabha Rao & Another .... ... on 16 September, 2025

Author: G. Satapathy

Bench: G. Satapathy

     IN THE HIGH COURT OF ORISSA AT CUTTACK
                   RPFAM No.18 of 2021

  (In the matter of an application Under Section 19(4) of
  the Family Court, 1984, r/w Section-401 of the Code of
  Criminal Procedure, 1973)

   G.Debendra Rao                      ....              Petitioner
                        -versus-
   G.Puspa Prabha Rao & another ....           Opposite Parties


   For Petitioner      :   Mr. B.P.B. Bahali, Advocate

   For Opposite        : Mr. A.Pradhan, Advocate
   Party


       CORAM:
                   JUSTICE G. SATAPATHY

              DATE OF HEARING : 09.07.2025
              DATE OF JUDGMENT: 16.09.2025

G. Satapathy, J.

1. In the instant revision, the petitioner-

husband seeks to challenge the impugned order dated

23.12.2019 passed in CMC No. 52-734 of 2012-16 by

which the learned Judge Family Court, Bargarh has

allowed the petition filed U/s. 125 of CrPC of OP-wife

and daughter for maintenance @ Rs.5,000/- each per

month; total Rs.10,000/- w.e.f. 06.03.2012.

2. The short facts involved in this case are

that the petitioner and OP No.1 who are the husband

and wife and their marriage was solemnized on

19.01.2001 according to their caste and customs and

after their marriage, they are blessed with a girl child

who is OP No.2 in this case. However, owing to

dissension and rancor between them with regard to

allegation of demand of further dowry articles, the OP

No.1 reported the matter to Mahila Sammittee, Bargarh

and thereafter, the revision-petitioner allegedly

deserted the OPs in the year 2004. Thus, the revision-

petitioner filed MAT Case No. 06 of 2004 against the

present OPNo.1 before the learned Civil

Judge(Sr.Divn.), Sambalpur for dissolution of their

marriage and such proceeding was decreed ex-parte on

08.03.2007, but thereafter, the present OP No.1 filed a

petition under Order IX, Rule 13 of the Code of Civil

Procedure, 1908 ( in short, "the CPC") to set aside the

above ex-parte decree in CMA No. 28 of 2007 which

was dismissed for default on 02.02.2012 and

thereafter, the present OPNo.1 filed another petition

U/s. 151 of CPC to set aside the order dated

02.02.2012 as passed in CMA No. 28 of 2007 which

proceeding was registered as CMA No. 13 of 2012.

While the matter stood thus, the present OPs filed a

petition U/s. 125 of CrPC against the revision-petitioner

for grant of maintenance and in such petition, the

present OPs have averred that the revision-petitioner is

an Advocate and earns Rs.20,000/- per month, out of

his profession and he also earns Rs.1,00,000/- per

month from his Hero Honda showroom and Rs.50,000/-

per month from house rent.

In resisting such claim, the present

revision-petitioner filed his show cause denying his

liability, but admitting the relationship with present

OPs. In such objection, the revision-petitioner has also

averred that the present OP No.1 is a qualified lady

with MA LLB Degree and she is earning more than him

and she being a LIC Agent & Teacher in private school

with landed property and building at heart of Bargarh

town, does not need any money to maintain herself or

their daughter. It is also claimed by revision-petitioner

that since present OP No.1 voluntarily deserted him

without any cause is not entitled to be maintained and

he is not having any landed property and his old and

ailing mother being dependent on him with his two

younger brothers is not able to pay the maintenance @

Rs.5,000/- each to the OP Nos. 1 & 2. It is also

contended in the objection by the revision-petitioner

that he has a small residential house over land of about

Ac.0.07dec. at Ainthapali Sambalpur which belong to

his father and he thereby having no other house has

not given any house on rent. With the aforesaid

averments, the revision-petitioner has prayed to

dismiss the maintenance proceeding.

3. After having considered the rival pleas

upon hearing the parties, the learned Judge Family

Court, Bargarh by formulating some points proceeded

to dispose the maintenance proceeding U/S. 125 of

CrPC by allowing the same with consequential direction

to the present revision-petitioner to pay Rs.5,000/-

each to his wife and daughter total Rs.10,000/- per

month w.e.f. 06.03.2012. Being aggrieved, the

husband-cum-revision petitioner is before this Court in

this present revision.

4. Heard, Mr. Biplab P.B.Bahali, learned

counsel for the Petitioner and Mr. Adhikari Pradhan,

learned counsel for OPs in the matter and perused the

record. In addition to oral argument, both the parties

have filed their written notes of submissions.

4.1. Mr.Biplab P.B.Bahali, learned counsel for

the petitioner, however, primarily raised three grounds

in his argument to dispute the claim of the wife &

daughter for maintenance; firstly, the wife-cum-present

OPNo.1 being a well-qualified and earning lady is not

entitled to maintenance; secondly, OP No.2 being a

major daughter is also not entitled to maintenance and

thirdly, the OP No.1-wife having deserted the husband

voluntarily without any excuse is not entitled to any

maintenance.

4.2. On the other hand, Mr. Adhikari Pradhan,

learned counsel for the present OPs has countered such

argument by submitting inter alia that the OP No.1-wife

being an Advocate is not having so much of income to

maintain herself and her daughter by catering the need

of the daughter as a Law student and the OP No.1-wife

having never deserted voluntarily the revision-

petitioner and the revision-petitioner having already

married to another lady, is thereby guilty of neglecting

the present-OPs as his wife and daughter. It is further

argued that the revision-petitioner is a man of means

and his younger brother is a Software Engineer and the

mother cannot be said to be dependent only on the

present petitioner, who is also having own spare part

shop in prime location of Sambalpur town and earning

some handsome amount/income out of the shop and

thereby, he is squarely liable to maintain his first wife

and daughter. Mr. Adhikari accordingly, has prayed to

dismiss the revision.

5. After having considered the rival

submissions upon perusal of record together with the

written notes of submissions as produced, there is

hardly any dispute about the relationships between the

parties and it is borne out from the record that the OP

No.1 was the wife of petitioner, whereas OP No.2 is

their daughter. The revision-petitioner, however, has

taken a technical plea of desertion against the OP No.1

to absolve him from the liability to pay maintenance,

but since being not disputed about petitioner having

married for the second time, it can be well presumed

that the OP No.1 has an valid excuse in law to live

separately from the revision-petitioner, which is in fact

mandated in the explanation appended to Sub-Sec(3)

of Sec. 125 of the CrPC, wherein it is laid down that if a

husband has contacted marriage with another woman

or keeps a mistress, it shall be considered to be just

ground for his wife's refusal to live with him. Besides, it

is also not in dispute that the revision-petitioner has

filed a proceeding before the Court seeking divorce

from OP No.1 and, therefore, such desertion plea could

not enure to the benefit of the revision-petitioner.

6. In coming back to the next challenge of

the revision-petitioner with regard to father not liable in

law to maintain unmarried major daughter, it appears

that Section 125(1)(b)(c) of the CrPC, however, casts a

responsibility on the father to maintain his minor child

unable to maintain itself as well as major child, but not

being a married daughter where such child is by reason

of any physical or mental abnormality or injury unable

to maintain itself. In this case, initially the wife and

minor daughter had claimed maintenance, however, in

the meantime, the daughter has already attained

majority. True it is that Section 125 of CrPC does not

have any express provision to grant maintenance to

major unmarried daughter/child except when such child

is by reason of any physical or mental abnormality or

injury unable to maintain itself. Admittedly, OP No.2 is

not a special child or a married daughter within the

meaning of Sec. 125(1)(c) of the CrPC, but by virtue of

Sec.20(3) for the Hindu Adoptions and Maintenance

Act, 1956 ( in short, "HAMA"), an unmarried daughter

is entitled to maintenance, provided she is unable to

maintain herself out of her own earnings or other

property. For clarity the provision of Sec. 20 of the

HAMA is extracted as under:-

"20. Maintenance of children and aged parents.-- (1) Subject to the provisions of this section a Hindu is bound, during his or her lifetime, to maintain his or her legitimate or illegitimate children and his or her aged or infirm parents.

(2) A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor.

(3) The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property".

Explanation- In this Section "parents" includes a childless step mother.

7. On a careful scrutiny of 125(1)(c) of the

CrPC, it only contemplates the claim of maintenance by

a special child including a daughter who even though

attained majority is entitled to maintenance only when

by reason of any physical or mental abnormality or

injury, is unable to maintain herself, but there is no

such limitation in Sec. 20(3) of the HAMA. Whether

Sec. 125 of CrPC and Sec. 20 of the HAMA can stand

together has been answered by the Apex Court in

Nanak Chand Vrs. Chandra Kishore Aggarwal and

others; (1969) 3 SCC 802, wherein while explaining

the provision of Sec. 488 of Code of Criminal

Procedure, 1898(125 of CrPC) and Sec. 20 of the

HAMA, the Apex Court in Paragraph-4 has observed as

under:-

"4.xx xx The learned Counsel says that Section 488 of Code of Criminal Procedure, 1898, insofar as it provides for the grant of maintenance to a Hindu, is inconsistent with Chapter III of the Maintenance Act, and in particular, Section 20, which provides for maintenance to children. We are unable to see any inconsistency between the Maintenance Act and Section 488 of Code of Criminal Procedure, 1898. Both can stand together. The Maintenance Act is an act to amend and codify the law relating to adoptions and maintenance among Hindus. The law was substantially similar before and nobody ever suggested that Hindu Law, as

in force immediately before the commencement of this Act, insofar as it dealt with the maintenance of children, was in any way inconsistent with Section 488 of Code of Criminal Procedure, 1898. The scope of the two laws is different. Section 488 of Code of Criminal Procedure, 1898 provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties xx xx xx".

8. It is no doubt true that Sec. 125 of CrPC

operates in the field of maintenance irrespective of

religion, but Sec. 20 of HAMA operates in the context of

Hindu Personal Law, however, in the present case, the

religion of the parties are not in dispute and they are

Hindus. In Classical Uncodified Hindu Law, a Hindu

male was always held morally and legally liable to

maintain his aged parents, a virtuous wife and infant

child. Hindu Law always recognized the liability of

father to maintain an unmarried daughter. In this

context, this Court considers it useful to refer to

paragraph 539 and 543 of Mulla Hindu Law- 20th

Edition, which are as follows:-

"539. Personal liability: liability of father, husband and son: A Hindu is under a legal obligation to maintain his wife, his minor sons, his unmarried daughters, and his aged parents, whether he possesses any property or not. The obligation to maintain

these relations is personal in character and arises from the very existence of the relation between the parties.

543. Daughter, (1): A father is bound to maintain his unmarried daughters. On the death of the father, they are entitled to be maintained out of his estate".

After the codification of Hindu Laws, HAMA

came into operation and deals with the question of

maintenance of the wife, widowed daughter-in-law,

children and aged parents as been dealt in Sec 18 to 20

of the HAMA. It is, therefore, very clear that Sec. 20(3)

of the HAMA is nothing, but the recognition of principle

of un-codified Hindu Law regarding maintenance of

children and aged parents. Sec. 20(3) of the HAMA

makes it obligatory on a Hindu to maintain his or her

aged or infirm parents, or a daughter who is unmarried

and unable to maintain herself out of her own earnings

or other properties and, therefore, Sec. 20(3) of HAMA

casts a statutory obligation on a Hindu to maintain his

daughter who is unmarried and unable to maintain

herself out of her own earnings or other properties. Be

that as it may, the statutory embargo as placed either

in Sec. 125 of CrPC or U/s. 20(3) of the HAMA lies on

the very same ingredients for the person claiming

maintenance to establish that he or she is unable to

maintain himself or herself. It is, therefore, in essence

both the sections are applicable subject to satisfaction

of the Court that person claiming maintenance is

unable to maintain itself out of their own earning or

other property. Further, the laws are nothing, but

collective consciousness of community. One of the

apparent conflicts in Sec. 125 of CrPC and Sec. 20 of

HAMA is that the daughter on the literal interpretation

of provision of Sec. 125 of CrPC would cease to claim

maintenance on attaining majority, but she can claim

maintenance under HAMA on the satisfaction that she is

unable to maintain herself. The purpose and object of

Sec. 125 of CrPC is benevolent and it is a social welfare

legislation so as to provide some relief to the person

unable to maintain itself from destitution & vagrancy

and, therefore, even if the daughter is ceased to have

her claim of maintenance on attaining majority in terms

of Sec. 125 of CrPC., but she is entitled to maintenance

even after on attaining majority under personal law.

However, this Court feels that the daughter may not be

forced to seek a remedy before the Court again for the

selfsame relief under Personal Law merely because her

proceeding is one U/s. 125 of CrPC when the Family

Court has jurisdiction to decide a case either U/s. 125

of CrPC or U/S. 20 of the HAMA. In this case, the

impugned order has been passed by the learned Judge

Family Court who is competent to pass order U/S.

20(3) of the HAMA. Further, had the impugned order

being passed by a learned Magistrate in exercise of

power U/S. 125 of CrPC., there would have some

rationale to ask the daughter to seek the same remedy

again under Personal Law. Learned counsel for the

petitioner has, however, relied upon the decision in

Abhilasha Vrs. Prakash & others; AIR 2020 SC

4355, to contend that the present OP No.2 is not

entitled to maintenance on attaining majority, but in

the aforesaid relied on decision, the Apex Court has in

fact granted liberty to the major unmarried daughter to

approach the Court again U/S. 20(3) of the HAMA

inasmuch as, the impugned order thereon was passed

by learned Judicial Magistrate and a proceedings U/S.

20 of the HAMA being filed by the applicants therein

was dismissed as withdrawn, but it is crystal clear that

the impugned order has been passed in this case by

learned Judge Family Court, Bargarh who has

concurrent jurisdiction to decide the application of the

applicants either under CrPC or under Personal Law. In

this situation, this Court does not see any valid reason

to force OP No.2 after six years to approach again to

the same Court for selfsame relief which has been

allowed to her in the year 2019 and remained unsettled

till today.

9. One precedent which would clarify the

position of law in this regard is the decision in Jagdish

Jugtawat vrs. Manju Lata and others; (2002) 5

SCC 422 wherein a three Judge Bench of the Apex

Court in Paragraphs-3 & 4 has held as under:-

"3. In view of the finding recorded and the observations made by the learned Single Judge of the High Court, the only question that arises for consideration is whether the order calls for interference xx xx xx ....."

4. Applying the principle to the facts and circumstances of the case in hand, it is manifest that the right of a minor girl for maintenance from parents after attaining majority till her marriage is recognized in Section 20(3) of the Hindu Adoptions and Maintenance Act. Therefore, no exception can be taken to the judgment/order passed by the learned Single Judge for maintaining the order passed by the Family Court which is based on

a combined reading of Section 125, Code of Criminal Procedure and Section 20(3) of the Hindu Adoptions and Maintenance Act. For the reasons aforestated, we are of the view that on facts and in the circumstances of the case no interference with the impugned judgment order of the High Court is called for."

On analysis of the facts involved in this

case together with the precedents as referred to

above, the position of law as emerges that even

though Section 125 of the CrPC restricts the payment

of maintenance to the children till they attain the

majority, but when it comes to the daughter, it is

consistent view that the major unmarried daughter

would be entitled to maintenance till she remains

unmarried by virtue of Section 20(3) of HAMA and the

rationale behind the aforesaid view is to avoid the

multiplicity of proceedings and to avoid situation like

this for pushing unmarried major daughter to file an

independent petition seeking for maintenance

U/S.20(3) of HAMA again, more particularly when the

Family Court has jurisdiction to decide the application

of such daughter either U/S125 of CrPC or U/S. 20(3)

of HAMA and therefore it cannot be forgotten that the

unmarried daughter though has attained majority is

entitled to claim maintenance in law from her father.

The aforesaid position of law has in fact been

recognized in Section 144 of Bharatiya Nagarika

Surakhshya Sanhita 2023 (in short BNSS), which is

pari materia, to Section 125 of CrPC, but slightly in

different way inasmuch as it does not save the word

"minor" and simply says "child" not being a married

daughter in its provision. Besides, Section 125 (1)(c)

speaks about the special child who by reason of any

physical or mental abnormality or injury unable to

maintain itself, but such injury may also include

mental injury and it would not be incorrect to say that

mental injury is nothing, but malice in law which can

be gathered on the basis of violation of a legal right to

claim maintenance vested under law and if the right to

claim maintenance of the daughter is infringed,

probably it may be called as a injury which can very

well fit into the definition to material injury. On a

cumulative consideration of the discussions made

hereinabove, it is apparently clear that even though

the daughter has attained majority, but she can

maintain an application for maintenance under

personal law and the impugned order in the present

case having been passed by learned judge, Family

Court, who has the jurisdiction to decide maintenance

for the major unmarried daughter by invoking the

provision of Sec.20(3) of the HAMA, it would not be

proper to ask the daughter to file a proceeding for her

maintenance after such length of time as in this case.

It is no more res integra that it is the substance, but

not the form under which a party applies to the Court

and appropriate relief, to which such party is entitled

to, should not be withheld merely because the petition

has been filed under wrong nomenclature. Accordingly,

the plea for maintenance by major unmarried

daughter is unsustainable as advanced does not stand

to the legal scrutiny and the impugned order does not

call for any interference by this Court on such plea of

the revision-petitioner, provided it is established that

such daughter is unable to maintain herself out of his

own earning or other properties.

10. On coming to the next question of

maintenance to the present OPs, it appears that the

learned trial Court on analysis of evidence albeit has

considered present OP No.1 as an advocate at Bargarh

Bar, but it has considered that all the advocates have

no sufficient income. True it is that the income of each

and every advocates cannot be generalized or it

cannot be said that all the advocates are earning

handsomely, but even for a moment, taking the OP

No.1 for having some income out of her profession, no

document or evidence is forthcoming or produced by

the revision petitioner to establish that OP No.1 is

having a particular income and taking into account the

averments of OP No.1 in her additional affidavit that

her monthly expenses is around Rs.7,000/- to

Rs.8,000/-, it is quite probable in the present day

market index. In addressing the plea of OP No.1 that

she has got no independent income, no evidence has

been tendered to establish the income of OP No.1,

however, she is an Advocate is not disputed, but the

wife and children are required to be maintained in law

commensurate to the standard of livings of

husband/father. Further, no document or evidence has

been produced by the revision-petitioner to show that

OPNo.1 had appeared in how many cases and

contested the same for her clients. It may so happen

that a person may be enrolled as an Advocate, but he

or she may not have engagement for days, months

and years together and in absence of any evidence

with regard to engagement of the OPNo.1 as a counsel

for different parties, it can be considered that she is

not having sufficient means to maintain herself and

her daughter in present day market cost, however,

even if the plea of revision-petitioner as advanced in

oral argument & written note of submission that the

monthly income of OP No.1 is Rs.6,000/- to Rs.7,000/-

from advocacy is taken into consideration, such

income of OPNo.1 cannot be held to be sufficient,

more particularly when the daughter, who is reading

law might be requiring such amount/earning of the

mother towards her study. It is also argued that the

father of the petitioner is having numerous landed

properties, but there is no liability of the father in law

to maintain his married daughter. Further, neither any

document has been tendered in the evidence nor

produced before this Court to establish that the OP

No.2-cum-major daughter is earning and not

depending on the income of her mother. It is,

however, claimed that the OP. No.2 is pursuing her

study in law which has not been controverted and

disputed by the petitioner. The revision petitioner,

however, takes a plea right now that he is not having

sufficient income and he having dependents children out

of his wedlock with second wife and dependent mother

may not be able to share any amount towards the

maintenance of the OPs, but the learned trial Court on

analysis of exhibit 4 to 6 which are income tax returns

acknowledgement of the revision petitioner for the year

2016-17, 2017-18, 2018-19 respectively has found the

revision petitioner to have gross total income of

Rs.6,06,888/- in the year 2018-19 with payment of

income tax of Rs.10,655/-. The learned trial Court has

also found on analysis of exhibit 7 to 10 that the revision

petitioner has deposited the money in SBI, LIC of India

and S.R.E.I Equipment Finance Ltd. which are never

disputed by the revision petitioner. It is neither denied

nor disputed that Ext.1 is the ROR of a piece of land in

the prime location at Ainthapali in Sambalpur Town

which stands recorded in the name of revision-petitioner

and Ext.2 is another piece of land which stands recorded

in the name of his father. Further, the revision-petitioner

has admitted his income @ Rs.12,000/- per month out

of his avocation as an Advocate and right now the

revision-petitioner in the written notes of argument

claims to have an income Rs.15,000/- per month. On

analysis of the admitted facts on record together with

the discussions as referred to above with regard to

revision-petitioner filing Income Tax returns in the year

2016-17, 2017-18, 2018-19, it can, therefore, be said

that the revision petitioner has sufficient income and he

is liable to provide maintenance to the present OPs being

his first wife and daughter who have no sufficient means

to maintain themselves.

11. It is also argued for the petitioner by relying

upon the decision of this Court in Madan Kumar

Satpathy Vrs. Priyadarshini Pati RPFAM No.417 of

2023 disposed of on 07.02.2025 that since the

petitioner is a well qualified woman and she having

prospect to earn, no maintenance is admissible to her

and her dependent daughter, but this decision was

rendered on a particular facts and the wife therein was

earlier working, but remained idle and for that reason,

the maintenance amount to the wife in the relied on

case was reduced to Rs.5,000/-, however, such situation

is not prevailing in this case. Besides, it cannot have any

universal application in all the cases that wife having

high qualification is intentionally avoiding to work only to

harass the husband with a intention to saddle the

liability to pay maintenance to her, unless there is

material evidence to that effect, inasmuch as in absence

of any evidence of income and/or prospect to earn, it

would be unfair to say that the wives are breeding a

class of idle women to burden their husband. On the

other hand, taking into account the materials placed on

record and the discussions made hereinabove together

with analysis of evidence on record, since it appears that

the OPs are not having sufficient means to maintain

themselves out of their own earnings and properties,

and they being the wife and major daughter of revision-

petitioner are entitled to maintenance, but the

entitlement of the major daughter is till she remains

unmarried and on consideration of present day market

cost and standard of living of OPs which must

commensurate to the standard of living of revision-

petitioner, it cannot be said that the grant of

maintenance to OPs @ Rs.5,000/- per month each is

neither exorbitant or on higher side, even after taking

into consideration of the income of an Advocate of the

stature of OP No.1 who is considered to be not a serious

practitioner and, therefore, the impugned order calls for

no interference by this Court.

12. In the result, the revision stands dismissed

on contest, but in the circumstance, there is no order

as to costs. Consequently, the impugned judgment

dated 23.12.2019 passed by the learned Judge, Family

Court, Bargarh in CMC No. 52-734 of 2012-16 is hereby

confirmed.

Digitally Signed                                                                         Judge
Signed by: KISHORE KUMAR SAHOO
Reason: Authentication
Location: High Court ofOrissa
                        Orissa High Court, Cuttack,
Date: 17-Sep-2025 10:22:46           th
                  Dated the 16 September, 2025/kishore