Bishnu Charan Nayak vs Linubala Kothala .... Opp. Party on 30 April, 2026

Author: Mruganka Sekhar Sahoo

Bench: Mruganka Sekhar Sahoo

              IN THE HIGH COURT OF ORISSA AT CUTTACK

                        RPFAM No.279 of 2025
            Bishnu Charan Nayak                ....         Petitioner

                                          Mr. A. Mishra, Advocate
                                    -versus-

            Linubala Kothala                   ....     Opp. Party

                       CORAM:
                       JUSTICE MRUGANKA SEKHAR SAHOO


                                     ORDER

30.04.2026 (Hybrid Mode)

I.A. No.403 of 2025 and RPFAM No.279 of 2025 Order No.

01. 1. The name of Mr. Manoranjan Muduli, learned counsel and associates shall be deleted as it is submitted by the learned counsel, Mr. Abhilash Mishra that he has appeared on 27.04.2026 with consent from the learned counsel who was appearing earlier.

2. The petitioner-husband is before this Court challenging the judgment dated 29.07.2024 passed by the learned Judge, Family Court, Nayagarh in Crl. M.P. No.186 of 2021. By the said judgment, the Crl. M.P. was allowed directing payment of monthly maintenance @ Rs.6,000/- per month though

Rs.10,000/- was sought for. The Crl.M.P. was initiated at the instance of the wife in the marriage. The petitioner appeared in the petition, filed his written statement, evidence and exhibits which have been considered at length and discussed in detailed by the learned trial court to make the judgment.

3. To challenge the judgment, in filing the revision application delay is reported to be 312 days. Apart from the question of condonation of delay, the learned counsel for the petitioner is heard regarding merits of the case seeking revision before this Court.

4. It is submitted that the learned trial court committed error inasmuch as the affidavit in the format prescribed in Rajnesh v. Neha and another: 2020 INSC 631: (2021) 2 SCC 324 regarding income of the parties were not on record.

In response, learned counsel for the petitioner was asked whether such plea was taken in the written statement and whether the opposite party has filed his income and expenditure to deny his liability, in response, it is submitted that no such affidavit was filed before the learned trial court which could have been considered by the court to determine the amount directed to be paid.

5. Further it has to be observed that the judgment of the Apex Court in Rajnesh v. Neha (supra) does not lay down the proposition of law that in absence of affidavit, maintenance cannot be granted and that though the husband himself does not file the affidavit, he can raise such a plea seeking revision.

6. The second ground of challenge is that the husband in the marriage has obtained ex parte decree alleging adultery by the wife, the said ex parte decree has not been challenged by wife.

7. The learned counsel for the petitioner was again requested to show whether such a plea was taken before the learned Judge, Family Court for denying the payment of maintenance. It is fairly submitted by the learned counsel for the petitioner that no such plea has apparently been taken.

8. The learned Judge, Family Court has framed nine issues after considering the pleadings of the parties. The said issues are reproduced herein:

"(i) Whether the OP neglected to maintain the Petitioner ?

(ii) Whether the Petitioner does not have the sufficient means to maintain herself ?

(iii) Whether the Petitioner is justified in living in separation from the OP

(iv) Whether the OP has no sufficient means to give maintenance to the Petitioner.

The following are the other points which also needs to be determined in this case based on the allegation by the OP in his show cause and those are as follows -

(v) Whether the Petitioner lived in adultery and for that she is not entitled to any maintenance from the OP ?

(vi) Whether the Petitioner aborted her child within few days of her marriage with the OP?

(vii) Whether the allegation by the OP that the petitioner was already pregnant by the time of her marriage with him has any truth?

(viii) Whether there is no consummation of marriage or no marital relationship established of the OP with the Petitioner?

(ix) Whether there is any confession (Ext.H, H/1) before the OP by the Petitioner and her family members (parents and her maternal aunt (P.W.2) on 05.02.2021 has any truth and can be acted upon as such whether the Petitioner allegedly stating that she has relationship with a person called Rajendra @ Dipu Behera before her marriage and she was pregnant by the said person called Rajendra @ Dipu Behera?"

9. Apparently, the plea of grant of ex parte decree of divorce in favour of the husband was not taken before the learned Family Court.

Regarding income of the husband the learned Family Court has given a finding in support of the salary of the husband at paragraph 21 which is reproduced herein:

"21. It is very difficult to believe that the OP is an income less person and also difficult to

believe that due to some minor injury to his finger as submitted by the learned advocate for the OP that he could not able to work. His wife on the other hand has lodged an FIR in the Khandapara P.S. and police has recovered some marriage articles in connection with the case and seized the articles under Ext.F and left the article sin the zima of the petitioner as evident from Ext.G. The OP has only come up with excuses not to pay any maintenance to the petitioner. It is clearly evident that he is an able bodied person and living in big city like BBSR and his Wife has filed this maintenance claim against him on 4.12.2021 and he has avoided to pay the amount of maintenance to her not looked after her and her needs. His wife has also not claimed a big amount of maintenance from the OP. She has only prayed for Rs.10,000/- per month for her maintenance when she filed this application. The petitioner has filed her asset and liability statement in the case on 2.4.2024 and she is a +3 Arts Graduate and she is 22 years old and she has shown in her asset and liability statement that the OP is working as a computer operator at AMRI hospital, BBSR. The OP also filed his asset and liability statement on 9.4.2024 and he is also a Graduate in Arts and started that he is working in the AMRI hospital and also claims that he has a loan liability from the YES Bank BBSR. The petitioner and OP has no child out of their marriage. It is evident that the OP is doubting fidelity of his wife (Petitioner). It is also evident that after such allegations against the petitioner that she hide her pregnancy through another persons to the OP and got married to the OP. It is also evident that the petitioner is living separately from the

OP since 05.02.2021. The OP after leveling such allegations against his wife (petitioner) in his show cause has mentioned nothing and brought nothing by evidence that whether the Petitioner is living with her so called lover Rajendra @ Dipu Behera. There is nothing to show that she is living with her lover. If the allegations of the OP against his petitioner is so much true then his wife by now living with her so called lover namely, Rajendra @ Dipu Behera. It can be concluded that all the allegation by the OP against petitioner are concocted and surmises and have no basis. If the petitioner has to be believed she has to abort her child. It is evident that the petitioner is suffering loss after loss and is not good condition of living. She is entitled to the same standard of living which she was enjoying when she was with her husband. It is evident that the OP is under obligation to maintain his petitioner wife and he has not given anything to her for her maintenance for such long years. It is evident the Divorce suit in C.P. 757 of 2022 by the Family Court Bhubaneswar, filed by the OP against the petitioner is in final stages as submitted by the learned advocate for the OP and the divorce between the petitioner and OP is finalized. It is evident that the petitioner has given a case for cruelty against the OP and his family members. It is evident from the charge sheet/final form in Khandpada PS cases 75 of 09.09.2021 of offences of 498A, 406 of IPC and section -4 of Dowry Prohibition Act. As evident Ext.E the certified copy of Charge sheet. It is also evident from Ext.F that Police has seized the mainly household articles from the house of the OP at Berhampura under Narsinghpur PS Dist-Cuttack as evident from Ext.F

22.09.2021. The petitioner has not appeared in this suit in CP 757 of 2022 before the Family Court, Bhubaneswar. It is evident that mainly on such vague allegation the OP is not taking care of his petitioner wife, in this difficult circumstances of her. Some written papers on Ext.H ad H/1 are produced in which the petitioner is admitting that and confessing that she was already pregnant when she married the OP and some confession by her aunt and uncle that the petitioner has relationship with some other persons is very difficult to belief such papers and such confession and admission if any given by the petitioner to the OP because the OP has not wanted any investigation through police nor given any report in police station. It is evident that this OP is a man within the P.S. Limit of P.S Nurshingpur District Cuttack but stays at Bhubaneswar and works in the AMRI, Hospital, Bhubaneswar."

10. Evidently learned court has also take note of the assets and liability statement filed by the petitioner-wife. It has also taken note of the assets and liabilities statement filed on behalf of the present petitioner-opposite party-husband by affidavit dated 09.04.2024.

Regarding issuance of notice at the instance of the petitioner seeking revision under Order 41 Rules 10 and 11 of CPC it has to be observed and reproduced herein:

"Order XLI Appeals from Original Decrees

10. Appellate Court may require appellant to furnish security for costs.

(1) The Appellate Court may in its discretion, either before the respondent is called upon to appear and answer or afterwards on the application of the respondent, demand from the appellant security for the costs of the appeal, or of the original suit, or of both:

Where appellant resides out of India- Provided that the Court shall demand such security in all cases in which the appellant is residing out of India, and is not possessed of any sufficient immovable property within India other than the property (if any) to which the appeal relates.

(2) Where such security is not furnished within such time as the Court orders, the Court shall reject the appeal.

11. Power to dismiss appeal without sending notice to Lower Court.-

(1) The Appellate Court, after sending for the record if it thinks fit so to do, and after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader.

(2) If on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. (3) The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred.

4. Where an Appellate Court, not being the High Court, dismisses an appeal under sub-rule (1), it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment.

11-A. Time within which hearing under rule 11 should be concluded.-

Every appeal shall be heard under rule 11 as expeditiously as possible and endeavour shall be made to conclude such hearing within sixty days from the date on which the memorandum of appeal is filed."

11. The learned counsel for the petitioner has adjournment to obtain instruction if the petitioner secure the amount by depositing the amount due as payable from 04.12.2021 to 04.12.2025 in the executing court. Upon deposit of the said amount before the learned Family Court the petitioner shall have the liberty for mentioning the present application to be taken up.

12. The matter shall be listed for orders in the week commencing 18.05.2026.

Liberty to mention.

(Mruganka Sekhar Sahoo) Judge Jyotsna/Radha