[Cites 11, Cited by 0]
Orissa High Court
Bipin Behera @ Kalia vs Itishree Behera ... ... Opp. Party on 27 January, 2026
Author: Mruganka Sekhar Sahoo
Bench: Mruganka Sekhar Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
RPFAM No. 13 of 2025
Bipin Behera @ Kalia ... ... Petitioner
-Versus-
Itishree Behera ... ... Opp. Party
Advocates appeared in this case:
For Petitioner : Mr. Jagabandhu Gadanayak, Advocate
For Opp. Party: Mr. Rajib Bihari Mishra, Advocate
RPFAM No. 375 of 2025
Itishree Behera ... ... Petitioner
-Versus-
Bipin Behera @ Kalia ... ... Opp. Party
Advocates appeared in this case:
For Petitioner : Mr. Rajib Bihari Mishra, Advocate
For Opp. Party: Mr. Jagabandhu Gadanayak, Advocate
CORAM:
THE HON'BLE MR. JUSTICE MRUGANKA SEKHAR SAHOO
RPFAM Nos.13 and 375 of 2025 Page 1 of 16
JUDGMENT
---------------------------------------------------------------
Date of hearing and judgment :27th January, 2026
---------------------------------------------------------------
MRUGANKA SEKHAR SAHOO, J.
1. Both the RPFAM invoking Revisional Jurisdiction of
this Court in matrimonial matters, arise out of judgment
dated 26.11.2024 rendered in CRP No.41 of 2023 by the
learned Judge, Family Court, Puri. In the RPFAM No.13
of 2025, filed by the husband, challenge is to the
judgment as he opposes the grant of maintenance. In
RPFAM No.375 of 2025 the wife in the marriage seeks
enhancement of the maintenance awarded by the
learned trial Court.
2. Heard learned counsel for the petitioner and
counsel for the opposite party at length.
3. By the judgment dated 26.11.2024 the learned
Judge, Family Court allowed petition filed U/s.125
Cr.P.C. (since repealed and parimateria provision being
Section 144 of BNSS 2023) by the wife seeking
maintenance of ₹30,000/- per month for herself and the
child in her womb when she filed the application. A total
sum of Rs.2,000/- per month as maintenance was
granted.
4. Though arising out of self same judgment, RPFAM
No.375 of 2025 was not listed today. Since the matter is
extensively heard and it is stated by the learned counsel
for the petitioner-wife in RPFAM 375 of 2025 (and
opposite party in the RPFAM No.13 of 2025) that the
wife would not seek further enhancement of the
maintenance as of now, the connected petition is
directed to be listed by special notice and taken up on
consent.
Memo of date is filed by the learned counsel for the
opposite party in RPFAM No.13 of 2025 (Petitioner in
RPFAM No.375 of 2025) indicating that for the present,
the amount of maintenance awarded by the judgment
dated 26.11.2024 is not sought to be enhanced.
5. Herein after, the reference to the parties in the
litigations takes RPFAM No.13 of 2025 as the lead case
where husband is the petitioner and the wife is the
opposite party.
6. The learned counsel for the petitioner in RPFAM
No.13 of 2025 on behalf of the husband in the marriage
was heard in extenso. He addressed arguments being
present at the Virtual Court, High Court of Orissa at
Puri. He raises the following contentions:
(i) maintenance U/s.125 Cr.P.C. could not have
been awarded for a child who was in womb when
the petition was filed claiming maintenance.
(ii) in view of the judgment rendered by the Hon'ble
Apex Court in Rajnesh v. Neha: 2020 INSC (63):
(2021) 2 SCC 324:AIR 2021 SC 569: maintenance
could not have been awarded for the wife as she
has not filed her income and liability affidavit.
(iii) for exercising jurisdiction U/s.125 of Cr.P.C.,
the wife has to prove that she is unable to maintain
herself and the minor child.
The legislative intent of enactment of 125
Cr.P.C. is that the wife must prove that she is
unable to maintain herself; the learned counsel
relies on the decision of the Hon'ble Supreme
Court: Bhagawan Dutt v. Kamla Devi: AIR 1975 SC
83:(1975) 2 SCC 386.
(iv) The conclusion arrived at by the learned trial
Court is not in consonance with the judgment
rendered by this Court in Rama Chandra Sahu v.
Smt. Tapaswini Sahu and another reported in 2007
(I) OLR 442.
7. To delve into the issue whether the child could
have been awarded maintenance as the child was in
womb when petition was filed, this Court has examined
the judgment and all the materials on record in detail.
Apparently, no such plea was raised in the pleadings or
on the date of argument/hearing of the matter:
12.11.2024. It is noticed the marriage was solemnized
on 09.07.2022 and by 12.11.2024 the child was already
born. The petitioner before the learned trial Court did
not make the unborn child a petitioner. It was stated in
the petition that she is claiming maintenance for the
child in the womb from the marriage.
8. The following issues were framed by the learned
trial court for determination as per the pleadings of the
parties and the evidence adduced.
"4. The points need for determination of this
case are:
(i) Whether the petitioner is legal married
wife of the OP ?
(ii) Whether the OP having sufficient means
neglected or refused to maintain the
petitioner ?
(iii) Whether the petitioner is unable to
maintain herself?
(iv) Whether the petitioner has voluntarily
deserted the OP ?
(v) Whether the petitioner is entitled to get
any maintenance from the OP and if so,
what would be the quantum of
maintenance ?"
9. The petitioner-husband had examined himself and
also examined another independent witness on his
behalf the witnesses being O.P.W.1 and O.P.W.2.
As has been recorded by the learned trial Court,
the O.P.W.-1-petitioner-husband in the marriage,
opposite party before the learned trial court had himself
stated that after birth of the child he had visited the
petitioner-wife. Regarding 'desertion' by the opposite
party-petitioner/wife as alleged by the petitioner, the
following finding has been given by the learned trial
court at paragraph-8 of the judgment, which is
reproduced herein:
"8. The OP has pleaded that he is always ready
to accept the petitioner, but she is not willing to
stay with him. P.W.1 stated in cross-examination
that if her husband wants to take her to her
matrimonial home, she does not want to return to
her matrimonial home. P.W.1 in answer to the
question put by the Court she stated that her
husband has suspected her character and the
paternity of her child was challenged by her
husband. Further the OP did not keep any
contact with the petitioner after getting the
information about her pregnancy. For that reason
the petitioner is not willing to return to her
matrimonial home. The petitioner has not filed
any criminal case against the OP for his ill-
treatment. It cannot be expected from a wife to
lodge a complaint before any forum, when the
paternity of her child has been challenged by her
husband. The above cross-examination evidence
of P.W.1 shows that she has not voluntarily
deserted the society of the OP without any
reasonable cause."
10. It would be evident from the above discussion by
the learned trial court that the petitioner had not
voluntarily deserted the society of the opposite party
without any reasonable cause.
11. Learned counsel for the petitioner has relied on
Rajnesh v. Neha1 (supra) to argue that in view of
absence of evidence of income of both the parties the
learned trial Court could not have awarded any amount
as maintenance. On being asked whether it is the
mandate of the said decision under Article-142 of the
constitution of India that in case of absence of evidence
by both the parties the Court could not have proceeded
to decide the matter to award maintenance, that too, a
sum of Rs.2000/- per month; it is fairly conceded by the
learned counsel for the petitioner that that is not the
mandate.
12. In the case at hand no documentary evidence was
adduced by any of the parties. Regarding the income of
the petitioner-opposite party/husband a finding of fact
has been given by the learned trial court that the
Opposite Party-husband in the marriage has filed the
affidavit of his assets and liabilities. The affidavit was
taken note of by the learned trial court.
2020 INSC (63): (2021) 2 SCC 324
The oral evidence rendered by the petitioner-
opposite party/wife regarding income of the husband-
petitioner herein as well as the evidence of father of the
wife (evidence of P.W.(s).1 and 2) could not be dislodged
by the present petitioner by cross-examining them or
adducing any contrary evidence.
13. Learned counsel for the petitioner has relied on the
decision rendered by the Hon'ble Supreme Court in
Bhagawan Dutt v. Kamla Devi2. Paragraph-18 and 19
of the said decision (SCC Print) are reproduced herein:-
"18. In our opinion, one wrong assumption has
led to another false deduction. The mere fact that
the language of Section 488(1) does not expressly
make the inability of a wife to maintain herself a
condition precedent to the maintainability of her
petition, does not imply that while determining
her claim and fixing the amount of maintenance,
the Magistrate is debarred from taking into
consideration the wife's own separate income or
means of support. There is a clear distinction
between a wife's locus standi to file a petition
under Section 488 and her being entitled, on
merits, to a particular amount of maintenance
thereunder. This distinction appears to have been
overlooked in Major Joginder Singh case. Proof of
the preliminary condition attached to a neglected
child will establish only his competence to file the
petition but his entitlement to maintenance,
particularly the fixation of its amount, will still
depend upon the discretion of the Magistrate. As
the Magistrate is requited to exercise that
AIR 1975 SC 83:(1975) 2 SCC 386
discretion in a just manner, the income of the
wife, also, must be put in the scales of justice as
against the means of the husband.
19. The object of these provisions being to
prevent vagrancy and destitution, the Magistrate
has to find out as to what it required by the wife
to maintain a standard of living which is neither
luxurious nor penurious, but is modestly
consistent with the status of the family. The
needs and requirements of the wife for such
moderate living can be fairly determined, only if
her separate income, also, is taken into account
together with the earnings of the husband and
his commitments."
Having gone through the judgment rendered by the
learned trial court and the reasoning given which are
based on the evidence on record it has to be held that
the principles laid down in Bhagawan Dutt (supra),
particularly paragraph-19 has been followed by the
learned trial court.
14. In Rajnesh v. Neha (supra) the following has been
laid down (INSC print).
"Given the backdrop of the facts of the present
case, which reveal that the application for interim
maintenance Under Section 125 Cr.P.C. has
remained pending before the Courts for seven
years now, and the difficulties encountered in the
enforcement of orders passed by the Courts, as
the wife was constrained to move successive
applications for enforcement from time to time,
we deem it appropriate to frame guidelines on the
issue of maintenance, which would cover
overlapping jurisdiction under different
enactments for payment of maintenance,
payment of Interim Maintenance, the criteria for
determining the quantum of maintenance, the
date from which maintenance is to be awarded,
and enforcement of orders of maintenance.
Guidelines/Directions on Maintenance
Maintenance laws have been enacted as a
measure of social justice to provide recourse to
dependant wives and children for their financial
support, so as to prevent them from falling into
destitution and vagrancy.
Article 15(3) of the Constitution of India provides
that:
"Nothing in this Article shall prevent the
State from making any special provision for
women and children."
Article 15 (3) reinforced by Article 39 of the
Constitution of India, which envisages a positive
role for the State in fostering change towards the
empowerment of women, led to the enactment of
various legislations from time to time."
xxx xxx xxx
"Prior to the amendment of Section 125 in 2001,
there was a ceiling on the amount which could be
awarded as maintenance, being Rs. 500 "in the
whole". In view of the rising costs of living and
inflation rates, the ceiling of Rs. 500 was done
away by the 2001 Amendment Act. The
Statement of Objects and Reasons of the
Amendment Act states that the wife had to wait
for several years before being granted
maintenance. Consequently, the Amendment Act
introduced an express provision for grant of
"interim maintenance". The Magistrate was
vested with the power to order the Respondent to
make a monthly allowance towards interim
maintenance during the pendency of the petition.
Under Sub-section (2) of Section 125, the Court
is conferred with the discretion to award
payment of maintenance either from the date of
the order, or from the date of the application.
Under the third proviso to the amended Section
125, the application for grant of interim
maintenance must be disposed of as far as
possible within sixty days' from the date of
service of notice on the Respondent."
[Underlined to supply emphasis]
15. The Hon'ble Supreme Court in Shamima
Farooqui v. Shahid Khan3, dealt with the issue of
payment of maintenance to wife in the marriage by the
husband have held at paragraphs 19 and 20 (SCC
online web edition point), which 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.
(2015) 5 SCC 705
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]
16. Further, for consideration of the present lis it
would be apt and appropriate to reproduce the
observations of Hon'ble Supreme Court in order dated
16.09.2019 disposing of Criminal Appeal No.1399 of
2019: Pratima Devi and another v. Anand Prakash:
"xxx xxx xxx xxx
2. Though served, no one appears for the
respondent. The appellants, the wife and minor
son of the respondent had filed a petition for
grant of maintenance under Section 125 of the
Criminal Procedure Code before the Principal
Judge, Family Court, Karkardooma Courts,
Delhi. The Principal Judge by order dated
03.10.2017 passed an order granting
maintenance @ Rs.20,000/- to the appellants,
(Rs.10,000/- to the wife and Rs.10,000/- to the
minor son). This order was passed ex-parte.
The respondent filed an application for setting
aside the ex-parte order which application was
rejected on 05.09.2018. Aggrieved, the
respondent filed criminal revision No.986 of
2018 before the High Court. Along with revision
petition an application for stay was filed. The
orders passed in the said petitions read as
follows:
"Trial Court record be requisitioned. List
on 25th November, 2019. In the
meantime, execution proceedings be kept
in abeyance."
3. We are constrained to observe that this
order shows total non-application of mind on
the part of the High Court. This was a case
where maintenance had been granted to a wife
and to a minor son. The High Court without
recording any reasons whatsoever, has stayed
the grant of maintenance both to the wife and
to the minor son. This should not be done. A
husband /father is duty bound to maintain his
wife and child. Unless there are very special
reasons, the higher court should not normally
stay such an order. In the present case no
reason has been mentioned justifying the grant
of the stay order.
xxx xxx xxx"
[Underlined to supply emphasis]
17. In considered view of this Court the legislative
intent of the enactment i.e. Section 125 of Cr.P.C. (since
repealed and parimateria provision being Section 144 of
BNSS) has been very aptly captured in the language of
Hon'ble Supreme Court in paragraph-19 of Bhagawan
Dutt (supra) which has been reproduced above. The
judgment rendered by the trial court cannot be faulted
with on the grounds as canvassed vehemently by the
learned counsel for the petitioner.
18. Since it was stated by the learned counsel for the
petitioner that the conclusions of the learned trial court
is not in consonance with the judgment of this Court in
the case of Rama Chandra Sahu v. Smt. Tapaswini
Sahu and another reported in 2007 (I) OLR 442, the
learned counsel was asked whether the said decision
was cited before the learned trial Court, the learned
counsel very fairly submits that it was not.
19. Further it is pointed to the learned counsel for the
petitioner that whether the decisions of this Court relied
on by the learned trial court as in Santosh Kumar
Tarai v. Jayashree Sahoo reported in 2018 (II) ILR-
CUT-271, Sanghamitra Moharana v. Balaram
Moharana & another reported in 2019 (III) ILR-CUT-
197 and Sanjib Kumar Parida v. Smt. Sukanti Dash
reported in 2019 (I) ILR-CUT-409, were in any manner
distinguished before the learned trial Court for not to be
followed/applied which are binding on the learned trial
Court as well as this Court in the present proceeding;
the learned counsel for the petitioner candidly stated
that those decisions have not been distinguished nor he
has anything to address before this Court to distinguish
them.
20. The learned counsel for the petitioner in RPFAM
No.375 of 2025, does not want to press for enhancement
of the amount, as of now, therefore without expressing
any opinion on merits of the said petition, the RPFAM
No.375 of 2025 is disposed of.
21. In view of the above discussions, considering the
rival submissions, materials on record, the factual
findings and reasoning given by the learned Judge,
Family Court and by following and applying the
principles enunciated by the Hon'ble Apex Court as cited
and discussed above it has to be and is held that the
judgment dated 26.11.2024 & R.P. No.41 of 2023
rendered by the learned Judge, Family Court, Puri is
just and proper based on proper and correct
appreciation of materials on record.
The RPFAM No.13 of 2025 being devoid of any
merit, is dismissed.
22. The amount due till date, to be paid by the
petitioner-husband to the opposite party-wife if not
already paid, shall be paid before the learned executing
court by the next date i.e. on 17.02.2026.
Copy of this judgment shall be forwarded by the
Registry of this Court to the learned Judge, Family
Court, Puri to be tagged to the records of the execution
cases: Criminal Exn. No.20 of 2025, Criminal Exn.
No.21 of 2025 and CRP No.41 of 2023 (disposed of on
26.11.2024).
Now costs reluctantly made easy.
(Mruganka Sekhar Sahoo)
Judge
Orissa High Court, Cuttack
The 27th January,2026/Radha
asant
RPFAM Nos.13
Date: 06-Feb-2026 and 375 of 2025
