Baikuntha Mohapatra vs Sandhyarani Mohapatra & .... Opp. ...
2026 Latest Caselaw 3197 Ori

Orissa High Court

Baikuntha Mohapatra vs Sandhyarani Mohapatra & .... Opp. ... on 7 April, 2026

Author: Mruganka Sekhar Sahoo

Bench: Mruganka Sekhar Sahoo

              IN THE HIGH COURT OF ORISSA AT CUTTACK

                          RPFAM No.270 of 2022

         Baikuntha Mohapatra                  ....        Petitioner

                                       Mr. S.K. Sethi, Advocate on
                                        behalf of Mr. A. Tripathy,
                                                         Advocate

                                  -versus-

         Sandhyarani Mohapatra &              ....     Opp. Parties
         another


                            CORAM:
        HON'BLE MR. JUSTICE MRUGANKA SEKHAR SAHOO

                                   ORDER

07.04.2026 Order (Hybrid Mode) No.

03. 1. Learned counsel for the Petitioner is heard at some length.

2. The petition was presented before this Court on 26.10.2022. Defects were pointed out by S.R. dated 10.11.2022. The defects were not removed. The matter was taken up by the Deputy Registrar (Judicial), Lawzima on 21.11.2025. Three weeks' time was granted for removal of defects. Thereafter, the matter was listed before the Bench on 16.03.2026. Further seven days time was granted for removal of defects.

After removal of defects the matter is listed after

about four years of filing for Fresh Admission.

3. The Petitioner-husband in the marriage is before this Court challenging the judgment dated 03.08.2022 passed by the learned Judge, Family Court, Nayagarh in Crl.M.P. No.284 of 2017. By the said judgment the application filed by the wife in the marriage then aged about 23 years and the minor daughter born from the wedlock aged about two years, under Section 125 of Cr.P.C. (since repealed and substituted by pari materia provision, Section 144 of BNSS, 2023) was allowed. Per month the wife had claimed Rs.6,000/- as maintenance for her and Rs.2,000/- for the minor child to prevent vagrancy and destitution.

4. The learned Judge, Family Court, Nayagarh adjudicated the matter based upon the evidence rendered by the Petitioner-Opposite Party- wife as P.W.1, her father as P.W.2. The present Petitioner examined himself as OPW 1 and a co-villager as OPW

2. The evidence on record regarding earning of the present Petitioner, is Rs.20,000/- per month and agricultural income, the total income: Rs.3,00,000/- per annum remain unrebutted.

However, the learned Judge, Family Court, Nayagarh directed Rs.3,000/- per month for the wife and Rs.1500/- for the child from the date of

application, i.e., 27.11.2017.

5. Based on instruction received, learned counsel for the Petitioner submits that no amount has been paid by the Petitioner during the pendency of the petition before the learned Judge, Family Court or as per the judgment and order dated 03.08.2022. The total amount due till 27.03.2026 for 99 months comes to Rs.4,45,500/-.

6. To resist the monthly maintenance it is submitted by learned counsel of the Petitioner that petitioner is a daily wager, though apparently no such evidence has been adduced before the learned Judge, Family Court.

7. The scope and implication of Section 125 of Cr.P.C. has been elaborately dealt with by the Hon'ble Supreme Court in Rajensh v. Neha: 2020 INSC 631: (2021) 2 SCC 324. The relevant paragraphs are reproduced herein.

"36. The amended Section 125 reads as under:

"125. Order for maintenance of wives, children and parents.--(1) If any person having sufficient means neglects or refuses to maintain--

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain

itself, or

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the First Class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means:

Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:

Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person. Explanation.--For the purposes of this Chapter--

(a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875); is deemed not to have attained his majority;

(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

(2) Any such allowance for the maintenance or

interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be. (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due : Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation.--If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be a just ground for his wife's refusal to live with him. (4) No wife shall be entitled to receive an allowance for the maintenance or interim maintenance and expenses of proceeding, as the case may be, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by

mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order."

(emphasis supplied)

37. In Chaturbhuj v.Sita Bai [Chaturbhuj v. Sita Bai, (2008) 2 SCC 316: (2008) 1 SCC (Civ) 547 :

(2008) 1 SCC (Cri) 356] this Court held that the object of maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy and destitution of a deserted wife by providing her food, clothing and shelter by a speedy remedy. Section 125 CrPC is a measure of social justice especially enacted to protect women and children, and falls within the constitutional sweep of Article 15(3), reinforced by Article 39 of the Constitution.

38. Proceedings under Section 125 Cr PC are summary in nature. In Bhuwan Mohan Singh v. Meena[Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353 : (2015) 3 SCC (Civ) 321 :

(2015) 4 SCC (Cri) 200] this Court held that Section 125 CrPC was conceived to ameliorate the agony, anguish, financial suffering of a woman who had left her matrimonial home, so that some suitable arrangements could be made to enable her to sustain herself and the children.

Since it is the sacrosanct duty of the husband to provide financial support to the wife and minor children, the husband was required to earn money even by physical labour, if he is able- bodied, and could not avoid his obligation, except on any legally permissible ground mentioned in the statute.

39. The issue whether presumption of marriage arises when parties are in a live-in relationship for a long period of time, which would give rise to a claim under Section 125 Cr PC came up for

consideration in Chanmuniya v. Virendra Kumar Singh Kushwaha [Chanmuniya v. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141 :

(2011) 1 SCC (Civ) 53 : (2011) 2 SCC (Cri) 666.

This judgment was referred to a larger Bench.] before the Supreme Court. It was held that where a man and a woman have cohabited for a long period of time, in the absence of legal necessities of a valid marriage, such a woman would be entitled to maintenance. A man should not be allowed to benefit from legal loopholes, by enjoying the advantages of a de facto marriage, without undertaking the duties and obligations of such marriage. A broad and expansive interpretation must be given to the term "wife", to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time. Strict proof of marriage should not be a precondition for grant of maintenance under Section 125 CrPC. The Court relied on the Malimath Committee Report on Reforms of Criminal Justice System published in 2003, which recommended that evidence regarding a man and woman living together for a reasonably long period, should be sufficient to draw the presumption of marriage.

40. The law presumes in favour of marriage, and against concubinage, when a man and woman cohabit continuously for a number of years. Unlike matrimonial proceedings where strict proof of marriage is essential, in proceedings under Section 125 CrPC such strict standard of proof is not necessary."

8. The Hon'ble Apex Court has authoritatively dealt with the scope of interference by this Court in exercise of revisional jurisdiction in orders passed by Learned Courts in applications filed U/s. 125 of

Cr.P.C, in Shamima Farooqui v. Shahid Khan:

2015 INSC 283: (2015) 5 SCC 705. The relevant paragraphs are reproduced herein:

"19. From the aforesaid enunciation of law it is limpid that the obligation of the husband is on a higher pedestal when the question of maintenance of wife and children arises. When the woman leaves the matrimonial home, the situation is quite different. She is deprived of many a comfort. Sometimes her faith in life reduces. Sometimes, she feels she has lost the tenderest friend. There may be a feeling that her fearless courage has brought her the misfortune. At this stage, the only comfort that the law can impose is that the husband is bound to give monetary comfort. That is the only soothing legal balm, for she cannot be allowed to resign to destiny. Therefore, the lawful imposition for grant of maintenance allowance.

20. In the instant case, as is seen, the High Court has reduced the amount of maintenance from Rs.4000 to Rs.2000. As is manifest, the High Court has become oblivious of the fact that she has to stay on her own. Needless to say, the order of the learned Family Judge is not manifestly perverse. There is nothing perceptible which would show that order is a sanctuary of errors. In fact, when the order is based on proper appreciation of evidence on record, no Revisional Court should have interfered with the reason on the base that it would have arrived at a different or another conclusion. When substantial justice has been done, there was no reason to interfere. There may be a shelter over her head in the parental house, but other real expenses cannot be ignored. Solely because the husband had retired, there was no justification to reduce the maintenance by 50%. It is not a huge fortune that was showered on the wife that it deserved

reduction. It only reflects the non-application of mind and, therefore, we are unable to sustain the said order.

[Underlined to supply emphasis]

9. The plea of the husband denying to pay any amount, how is to be dealt with has been considered and discussed in Shamima Farooqui (supra) as well as Rajnesh (supra). For sustaining the challenge the Petitioner, if so advised, shall file affidavit how he will secure the amount of Rs.4,45,500/- towards maintenance that remains due till date.

10. The matter shall be listed for fresh admission in the week commencing 04.05.2026.

(Mruganka Sekhar Sahoo) Judge

Amit

Location: HIGH COURT OF ORISSA, CUTTACK