[Cites 8, Cited by 0]
Orissa High Court
Patent Of Patna High Court Read With ... vs Union Of India & Others on 20 January, 2026
Author: Chittaranjan Dash
Bench: Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A No.1053 of 2025
In the matter of an appeal under Section-10 of the Letters
Patent of Patna High Court read with Article-4 the Orissa
High Court Rules, 1948 from a common order dated
09.04.2025 passed by the Single Judge in W.P.(C) No.19271
of 2016.
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Rashmi Roshan @ Nigar .... Appellant
-versus-
Union of India & Others .... Respondents
Advocates Appeared in this case
For Appellant - M/s. Dr. Binod Kumar Mishra, B.
K. Mishra, S. Bag,
Advocates
For Respondents - M/s.Millon Kumar, Advocates
[R-1]
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CORAM :
MR. JUSTICE DIXIT KRISHNA SHRIPAD
MR. JUSTICE CHITTARANJAN DASH
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Date of Hearing & Judgment : 20.01.2026
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Chittaranjan Dash, J.
1. This intra-court appeal is directed against the judgment
and order dated 09.04.2025 passed by the learned Single Judge of
this Hon'ble Court in W.P.(C) No. 19271 of 2016, whereby the
writ petition filed by the appellant was dismissed.
2. The appellant and Respondent No.4 came in contact in the
year 2004 at Cuttack, during the appellant's visit to her aunt's
house, and gradually developed a relationship. On 25.06.2006,
their marriage was solemnised according to Islamic rites (Nikah)
at Bhadrak, following which the marriage was consummated.
Soon thereafter, when the appellant was taken to the parental
house of Respondent No.4 at Kendrapara, she was subjected to
cruelty, dowry demands, and refusal of acceptance as a
daughter-in-law, compelling her to seek shelter outside the
matrimonial home. Owing to continued neglect and harassment,
the appellant initiated legal proceedings, including a
maintenance case in the year 2007 and approached the Women
Commission, pursuant to which criminal proceedings were
initiated against Respondent No.4 and his family members. On
12.12.2008, Respondent No.4 and his father were arrested,
following which Respondent No.4 admitted his wrongdoing and
agreed to formalise the marital relationship. On the same day i.e.
12.12.2008, a Nikah was solemnised before a Government Kazi in
the presence of family members from both sides, and a
Nikahnama was duly issued. An agreement was also executed
contemporaneously to safeguard the appellant from threats of
arbitrary divorce.
Subsequent to resuming his service in the Indian Air Force,
Respondent No.4 failed to maintain the appellant and
deliberately withheld information of the marriage from his
service authorities. On 28.12.2008, the appellant formally
submitted representations along with the marriage documents to
the Air Force authorities, requesting that her name be recorded
as the wife of Respondent No.4 in his service records. Despite
being in possession of the relevant documents, the authorities
did not act upon the request. Instead, disciplinary proceedings
were initiated against Respondent No.4 in May, 2009 for failure
to obtain permission for marriage and for non-disclosure of
marital details, culminating in a punishment of reprimand under
Section 82 of the Air Force Act, 1950. During this process, the
appellant was examined through questionnaires, and the marital
relationship stood acknowledged in official proceedings. Even
thereafter, no steps were taken to record the appellant's name in
the service records.
In the year 2012, the appellant furnished a judicial order
passed by the learned Judicial Magistrate confirming the marital
status between the parties. Despite this, the authorities continued
their inaction. For the first time, in July 2012, Respondent No.4
claimed to have divorced the appellant in September 2009,
though no such assertion had been made earlier, nor was any
valid proof disclosed at the relevant time. It later transpired that
a Talaqnama dated 20.12.2014 was relied upon by the authorities,
notwithstanding serious infirmities relating to jurisdiction,
legality, and absence of the appellant's consent or participation.
During this period, Respondent No.4 was permitted to contract a
second marriage in August 2013, even before the alleged divorce
was formally recorded, and the name of the second wife was
entered into the service records, thereby excluding the appellant
altogether.
Aggrieved by the continued refusal of the Air Force
authorities to recognise her marital status and to deduct
maintenance from the salary of Respondent No.4, the appellant
approached this Hon'ble Court by filing W.P.(C) No. 19271 of
2016. By the impugned judgment dated 09.04.2025, the learned
Single Judge declined interference on the ground that disputed
questions of fact were involved, yet proceeded to make definitive
findings on marital status and validity of divorce, and ultimately
dismissed the writ petition as being devoid of merit. It is against
this decision, whereby the appellant has been left remediless
despite long-standing documentary and judicial recognition of
her marital status, that the present intra-court appeal has been
preferred.
3. The learned Single Judge, by judgment dated 09.04.2025
passed in W.P.(C) No. 19271 of 2016, declined to exercise writ
jurisdiction under Articles 226 and 227 of the Constitution of
India, holding that the reliefs sought by the petitioner involved
disputed questions of fact requiring adjudication on the basis of
evidence by a competent civil court. The learned Single Judge
further held that, in view of the existing marital status recorded in
the service records of Respondent No.4 and the rival claims
regarding marriage, divorce, and subsequent remarriage, no writ
of mandamus could be issued either for recording the petitioner's
name as wife in the service records or for deduction of
maintenance from the salary of Respondent No.4.
4. The Hon'ble Supreme Court in Roshina T vs. Abdul Azeez
K.T. & Ors., 2019 (I) ILR - CUT 10 (S.C.) has categorically
reiterated that questions relating to disputed facts cannot be
adjudicated in proceedings under Article 226 of the Constitution
of India, as follows:
14. These questions, in our view, were pure questions of
fact and could be answered one way or the other only by
the Civil Court in a properly constituted civil suit and on
the basis of the evidence adduced by the parties but not
in a writ petition filed under Article 226 of the
Constitution by the High Court.
15. It has been consistently held by this Court that a
regular suit is the appropriate remedy for settlement of
the disputes relating to property rights between the
private persons. The remedy under Article 226 of the
Constitution shall not be available except where
violation of some statutory duty on the part of statutory
authority is alleged. In such cases, the Court has
jurisdiction to issue appropriate directions to the
authority concerned. It is held that the High Court
cannot allow its constitutional jurisdiction to be used for
deciding disputes, for which remedies under the general
law, civil or criminal are available. This Court has held
that it is not intended to replace the ordinary remedies
by way of a civil suit or application available to an
aggrieved person. The jurisdiction under Article 226 of
the Constitution being special and extraordinary, it
should not be exercised casually or lightly on mere
asking by the litigant. (See Mohan Pande vs. Usha Rani,
1992 (4) SCC 61 and Dwarka Prasad Agrawal vs BD
Agrawal, (2003) 6 SCC 230).
16. In our view, the writ petition to claim such relief was
not, therefore, legally permissible. It, therefore, deserved
dismissal in limine on the ground of availability of an
alternative remedy of filing a civil suit by respondent
No. 1 (writ petitioner) in the Civil Court.
17. We cannot, therefore, concur with the reasoning and
the conclusion arrived at by the High Court when it
unnecessarily went into all the questions of fact arising
in the case on the basis of factual pleadings in detail (43
pages) and recorded a factual finding that it was the
respondent No. 1 (writ petitioner) who was in
possession of the flat and, therefore, he be restored with
his possession of the flat by the appellant.
18. In our opinion, the High Court, therefore, while so
directing exceeded its extraordinary jurisdiction
conferred under Article 226 of the Constitution. Indeed,
the High Court in granting such relief, had virtually
converted the writ petition into a civil suit and itself to a
Civil Court. In our view, it was not permissible.
5. The Hon'ble Supreme Court in Shubhas Jain vs. Rajeshwari
Shivam & Ors., 2021 SCC OnLine SC 562, has further held the
following:
26. It is well settled that the High Court exercising its
extraordinary writ jurisdiction under Article 226 of the
Constitution of India, does not adjudicate hotly
disputed questions of facts. It is not for the High Court
to make a comparative assessment of conflicting
technical reports and decide which one is acceptable.
6. It is well settled that questions relating to disputed facts
cannot be adjudicated in proceedings under Article 226 of the
Constitution of India. The writ court does not undertake an
exercise involving appreciation of evidence, examination of
witnesses, or recording of findings on facts. Issues such as
determination of marital status, validity of marriage or divorce
are essentially questions of fact, which can be resolved only upon
a full-fledged adjudication before a competent forum. Such
issues, by their very nature, fall outside the permissible scope of
writ jurisdiction.
7. From the material placed on record, it is evident that while
the appellant relied upon a Nikahnama dated 12.12.2008 and
subsequent judicial orders granting maintenance under the
Protection of Women from Domestic Violence Act, 2005, the
respondents produced documents indicating pronouncement of
talaq in September 2009 and its subsequent registration, which
was verified by the Air Force authorities through an internal
inquiry. It is also borne out from the record that Respondent
No.4's second marriage was permitted and recognised by the
competent service authorities after such verification, and the
name of the second wife stood recorded in the official service
records.
8. Further, the maintenance awarded in favour of the
appellant has already been adjudicated and enforced through
criminal court proceedings, which have attained finality up to this
Court, and there is no material on record to demonstrate any
subsisting default warranting recourse to Section 92(i) of the Air
Force Act, 1950.
9. In view of the aforesaid factual position and the nature of
disputes involved, we find no infirmity in the reasoning or
conclusion arrived at by the learned Single Judge. The impugned
judgment reflects a correct appreciation of the limits of writ
jurisdiction in matters involving contested marital status and
service record entries.
10. We, therefore, see no reason to interfere with the order
dated 09.04.2025 passed in W.P.(C) No. 19271 of 2016, and the
writ appeal stands disposed of accordingly.
It is made clear that the observations made herein are
confined to the scope of the present writ proceedings and shall
not come in the way of the appellant in availing or pursuing any
appropriate legal remedy before the competent forum for
establishment of facts, in accordance with law.
(Chittaranjan Dash)
Judge
(Dixit Krishna Shripad)
Judge
Orissa High Court, Cuttack
The 20th Day of January, 2026/A.K. Pradhan
Designation: Junior Stenographer
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 22-Jan-2026 13:21:44
