[Cites 11, Cited by 0]
Orissa High Court
Prafulla Kumar Mishra vs Annapurna Mishra .... Opposite Party on 4 February, 2026
Author: Mruganka Sekhar Sahoo
Bench: Mruganka Sekhar Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
RPFAM No. 36 of 2022
Prafulla Kumar Mishra .... Petitioner
Mr. A.K.Tripathy, Advocate
-versus-
Annapurna Mishra .... Opposite Party
CORAM:
JUSTICE MRUGANKA SEKHAR SAHOO
ORDER
04.02.2026
(Hybrid Mode)
Order No.
02. 1. It is submitted by learned counsel for petitioner
the defect no.4(a) as pointed by the S.R. regarding
authentication fee to be paid has already been
removed. The payment of court fees is substantiated
by the receipt produced in Court. Receipt shall be filed
in the Registry and taken on record. Scanned copy be
updated.
2. Revision of judgment dated 16.11.2026 rendered
by the learned Judge, Family Court, Cuttack in
Criminal Proceeding No. 470 of 2014 is sought for.
3. By the said judgment the petition filed by the
petitioner-husband in the marriage under section
126(2) of Cr.P.C. to set aside the ex parte order dated
17.11.2014 passed in Criminal Proceeding No. 606 of
2011 was dismissed. Perusal of the impugned
judgment indicates that the petitioner had taken a plea
of not taking steps from 10.07.2014 to 23.11.2011 due
to financial crisis. Petitioner had produced the medical
certificate claiming that he was ill for the said period.
But the petitioner has admitted in cross examination
that he had performed his duty as teacher in the Govt.
school from 10.07.2014 to 23.11.2014.
4. The further plea taken before learned Judge,
Family Court was that in the 'settlement/compromise
petition' i.e., captioned in vernacular as 'Rafanama',
the wife in the marriage had put her signature agreeing
to a condition that she would never claim any
enhancement of maintenance that was awarded in
1995 in the Criminal Proceeding No. 574 of 1991.
Apparently the plea of financial crisis substantiated by
medical certificate fell apart, upon cross examination
of the petitioner as he stated that he was doing his
duty as teacher in the Govt. school.
5. At paragraph-5 of the judgment dated 17.11.2014
regarding award of ₹4000/- by enhancing the amount
of ₹300/- pursuant to the claim in the year 1991,
following has been indicated :
"05. Having heard the petitioner and on perusal of
the materials on record as it appears since 1995
the OP has been paying monthly maintenance @
Re.300/- per month, as per order passed on
compromise in CRP No.574/91. In the mean time,
more than 15 years has already been elapsed.
The Ext.1 discloses that the gross salary of the OP
in the year 2011 was Rs.20,109/- which must
have increased by now. Having regard to the
present cost of living, the person cannot maintain
herself during the entire month with a sum of
Rs.300/-. So in the changed circumstances, the
petitioner is entitled to get enhancement of
maintenance dues. Hence, it is ordered :
ORDER
The petition is allowed ex parte against the OP,
without cost. The original maintenance awarded
in favour of petitioner @ Rs.300/-per month is
enhanced to Rs.4000/- per month from the date of
the application. Accordingly, the OP is dirécted to
pay the maintenance to the petitioner at the
enhanced rate."
6. A further factual finding has been given by the
Court that salary certificate of the petitioner-husband
shows that gross salary in the year 2011 was
₹20,109/- and the learned Court has taken into
account cost of living in the year 2014 to enhance the
amount to ₹4,000/- from ₹300/-.
7. Though the learned trial court has not gone into
the aspect of compromise decree that purportedly
'restrained' the wife from claiming any enhancement, it
would be apt and appropriate to refer to the provision
of Indian Contract Act, 1872 which provides at section
28. Section 28 is reproduced herein :
"Agreements in restraint of legal proceedings,
void. [Every agreement,--
(a) by which any party thereto is restricted
absolutely from enforcing his rights under or in
respect of any contract, by the usual legal
proceedings in the ordinary tribunals, or which
limits the time within which he may thus enforce
his rights; or
(b) which extinguishes the rights of any party
thereto, or discharges any party thereto from any
liability, under or in respect of any contract on the
expiry of a specified period so as to restrict any
party from enforcing his rights, is void to that
extent.]
Exception 1.--Saving of contract to refer to
arbitration or mediation dispute that may
arise.--This section shall not render illegal a
contract, by which two or more persons agree that
any dispute which may arise between them in
respect of any subject or class of subjects shall be
referred to resolution through arbitration or
mediation.
Exception 2.--Saving of contract to refer
questions that have already arisen.--Nor shall
this section render illegal any contract in writing,
by which two or more persons agree to refer to
arbitration or mediation any question between
them which has already arisen, or affect any
provision of any law in force for the time being as
to references to arbitration or mediation.
[Exception 3.--Saving of a guarantee
agreement of a bank or a financial
institution.--This section shall not render illegal
a contract in writing by which any bank or
financial institution stipulate a term in a
guarantee or any agreement making a provision
for guarantee for extinguishment of the rights or
discharge of any party thereto from any liability
under or in respect of such guarantee or
agreement on the expiry of a specified period
which is not less than one year from the date of
occurring or non-occurring of a specified event for
extinguishment or discharge of such party from
the said liability.
Explanation.--
(i) In Exception 3, the expression "bank" means--
(a) a "banking company" as defined in
clause (c) of section 5 of the Banking
Regulation Act, 1949(10 of 1949).
(b) "a corresponding new bank" as defined in
clause (da) of section 5 of the Banking
Regulation Act, 1949(10 of 1949);
(c) "State Bank of India" constituted under
section 3 of the State Bank of India Act, 1955
(23 of 1955);
(d) "a subsidiary bank" as defined in clause (k)
of section 2 of the State Bank of India
(Subsidiary Banks) Act, 1959(38 of 1959);
(e) "a Regional Rural Bank" established under
section 3 of the Regional Rural Banks Act,
1976(21 of 1976);
(f) "a Co-operative Bank" as defined in clause
(cci) of section 5 of the Banking Regulation Act,
1949(10 of 1949);
(g) "a multi-State co-operative bank" as defined
in clause (cciiia) of section 5 of the Banking
Regulation Act, 1949(10 of 1949); and
(ii) In Exception 3, the expression "a financial
institution" means any public financial institution
within the meaning of section 4A of the Companies
Act, 1956(1 of 1956).]
Assuming that the wife had made a statement in
'compromise deed' that she will not claim any
enhancement, if the said document is elevated to the
status of an agreement, it is hit by section 28.
8. It has to be noted that a right that was being
considered by the trial court emanates from provision
i.e. section 125 of Cr.P.C. (since repealed) and
substituted by BNSS, 2025. Section 125 of Cr.P.C. has
been enacted by the legislature which is relatable to
the Article 15(3) of the Constitution of India.
9. Learned counsel for the petitioner has
adjournment to address further.
List in the week commencing 09.03.2026.
(Mruganka Sekhar Sahoo)
Judge
dutta
