Orissa High Court
Kakhashan Khan vs Gayasuddin Khan ....... Opposite Party on 20 January, 2026
IN THE HIGH COURT OF ORISSA, CUTTACK
RPFAM No.260 of 2017
Kakhashan Khan ....... Petitioner
-Versus-
Gayasuddin Khan ....... Opposite Party
RPFAM No.293 of 2017
Gyasuddin Khan @
Gayasuddin Khan
....... Petitioner
-Versus-
Kahkashan Khan ....... Opposite Party
Advocate for the parties
For Petitioner : In Person
(In RPFAM No.260 of 2017)
For Petitioner : Mr. S.K. Mohanty,
(In RPFAM No.293 of 2017) Advocate
For Opposite Party : Mr. S.K. Mohanty,
(In RPFAM No.260 of 2017) Advocate
For Opposite Party : In Person
(In RPFAM No.293 of 2017)
----------------------------
CORAM: JUSTICE SANJAY KUMAR MISHRA
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Date of Hearing: 28.10.2025 Date of Judgment: 20.01.2026
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S.K. Mishra, J. The present common judgment arises out of two
revision petitions i.e., RPFAM No.260 of 2017 preferred by
the divorced Muslim woman (hereinafter referred as the
Petitioner), and RPFAM No.293 of 2017 preferred by the ex-
husband (hereinafter referred as the Opposite-Party), both
challenging the order dated 07.10.2017 passed by the
learned Judge, Family Court, Bhubaneswar, in Criminal
Proceeding No.121 of 2016.
2. Vide the said order dated 07.10.2017, the
amount of maintenance was enhanced by the learned Court
below from Rs.3000/- to Rs. 8,100/- in an application filed
by the Petitioner U/s 127 of CrPC. While the Petitioner
seeks enhancement of the maintenance awarded to her as
being inadequate and disproportionate to the Opposite
Party's income, the Opposite Party assails the said order as
excessive, unsustainable and without jurisdiction.
3. The undisputed facts, as borne out of the
records, are that the marriage between the Opposite Party,
who is the Petitioner in RPFAM No.293 of 2017, and the
Petitioner, who is the Opposite Party in RPFAM No.293 of
2017, was solemnized on 11.04.1993 according to Muslim
RPFAM Nos.260 & 293 of 2017 Page 2 of 48
rites and customs. After about six months of the marriage,
the Petitioner joined the Opposite Party at his place of
posting at Jajpur Road, where they resided together as
husband and wife. Out of their wedlock, a son namely,
Asad Khan was born on 29.09.1995. In the year 1999, the
Opposite Party was transferred to Bhubaneswar, where the
couple continued to live together with their son.
3.1. However, marital discord arose between them.
On 27.10.2003 serious matrimonial disputes led to the
Petitioner leaving the matrimonial home. Subsequently, on
03.11.2003, the Opposite Party pronounced talaq upon the
Petitioner, thereby dissolving the marriage. Shortly
thereafter, i.e., on 12.11.2003, the Opposite Party alleged
that Petitioner and her son forcibly entered his house at
Bhubaneswar and began residing there, thereby
dispossessing him from the said house. On the same day
he lodged an FIR alleging offences of criminal trespass and
intimidation. G.R. Case No. 3953 of 2003, on which the
Police submitted a charge-sheet, remains pending before
the competent Court. Whereas the Petitioner lodged FIR
No.90 of 2004 against the Opp. Party for the alleged
RPFAM Nos.260 & 293 of 2017 Page 3 of 48
offences U/s 498(A), 506, 34 of I.P.C. so also C.S
No.115/2008 before the learned Civil Judge (Senior
Division), Bhubaneswar to restrain the Opposite Party by
injunction not to evict her from the house At-Patia, P.S-
Infocity, Bhubaneswar, with a Counter Claim by the
Opposite Party to evict her from the said house.
3.2. Following the dissolution of marriage, the
Petitioner filed C.M.C. No.61 of 2004 before the learned
S.D.J.M., Bhubaneswar under Section 3(2) of the Muslim
Women (Protection of Rights on Divorce) Act, 1986, shortly,
"the Act, 1986", claiming monthly maintenance of ₹5,000/-
for herself and ₹2,000/- for her son. By order dated
29.07.2006, the learned Magistrate directed payment of
maintenance of ₹1,500/- per month to each of them. Being
aggrieved thereby, the Opposite Party preferred Criminal
Revision No.751 of 2006 before this Court. In the said
Criminal Revision, the issue was scope of a Muslim
husband's liability post-divorce under the Act, 1986, so
also maintainability of such application under Section 3(2)
of the Act, 1986, vide which a prayer for maintenance of the
minor child was also entertained by the learned Court
RPFAM Nos.260 & 293 of 2017 Page 4 of 48
below. But, in absence of reasonable and fair provisions of
maintenance in favour of Muslim minor children under the
Act, 1986, the Opposite Party was directed to provide
maintenance under section 125 Cr.P.C. in favour of his
minor son. Vide judgment dated 03.02.2009, this Court
dismissed the Revision Petition preferred by the Opposite
Party and upheld the order passed by the learned S.D.J.M.,
Bhubaneswar. This Court held that a Muslim husband's
liability extends beyond the iddat period and includes
making of fair and reasonable provisions for his divorced
wife's future. It was also reaffirmed that a father must
maintain his minor children irrespective of his religion.
3.3. However, the Petitioner initiated an execution
proceeding before the learned SDJM, Bhubaneswar for
execution of order passed in CMC No. 61 of 2004. The
Opposite Party, despite due notice, neither appeared in the
said case nor paid any maintenance as ordered in the said
case. Hence, in the execution proceeding the Learned
S.D.J.M., Bhubaneswar directed to make salary attachment
of Opposite Party and remittance of maintenance amount to
RPFAM Nos.260 & 293 of 2017 Page 5 of 48
the Petitioner's bank account. Consequently, the Opposite
Party preferred W.P.(Crl.) No.372 of 2009 before this Court
against the order for the salary attachment passed by the
learned S.D.J.M., Bhubaneswar vide Order dated
13.04.2009 and Order dated 14.05.2009 passed in CMC
No.61 of 2004.
3.4. In W.P.(Crl.) No.372 of 2009, which was decided
on 23.12.2009, the issue was mode of enforcement of
maintenance orders to the Petitioner and her minor son.
This Court upheld the validity of enforcing a finalized
maintenance order under Section 125 Cr.P.C. through
salary deduction, directly to be paid into the account of the
Petitioner.
3.5. However, the Opposite Party, who was directed
by the learned S.D.J.M., Bhubaneswar to pay Rs.3000/-
per month to his divorced wife and son via salary
attachment, expressed his willingness to make direct bank
transfers instead. Considering such prayer, this Court
allowed the Opposite Party to pay Rs.3000/- per month
through standing instruction to his bank, effective from
RPFAM Nos.260 & 293 of 2017 Page 6 of 48
03.02.2009, and directed the learned S.D.J.M. to determine
arrears separately.
3.6. Subsequently, the Petitioner filed C.M.C. No.141
of 2009 to enhance her maintenance. The learned Judge
Family Court, Bhubaneswar, exercising its powers under
Section 127 Cr.P.C., enhanced the maintenance from
₹l,500/- to ₹3,000/- per month each for the Petitioner as
well as her son on 25.02.2011. The Opposite-Party
challenged the said order before this Court in RPFAM
No.105 of 2011, wherein the issue was jurisdiction of the
Family Court to enhance maintenance under the Act,
1986.Ultimately, RPFAM No.105 of 2011 was dismissed on
25.02.2015, affirming the said order passed in C.M.C.
No.141 of 2009. This Court held that, under Sections
7(1)(f) and 20 of the Family Courts Act, 1984, the Family
Court has jurisdiction to decide and enhance maintenance
under Section 3(2) of the Act, 1986, which can be enhanced
considering inflation and changed circumstances. The
enhancement to Rs.3000/- to each was found justified.
However, in view of the provisions under Section 125(1)(b)
RPFAM Nos.260 & 293 of 2017 Page 7 of 48
Cr.P.C., this Court directed that the son's maintenance
would continue till he attains majority.
3.7. Furthermore, the Petitioner once again
approached the Family Court, Bhubaneswar by filing
Criminal Proceeding No.121 of 2016 under Section 127
Cr.P.C, seeking enhancement of maintenance from
₹3,000/- to ₹35,000/- per month, citing escalation in living
costs, her dependent condition and the considerable
increase in the Opposite-Party's salary, following
implementation of the Seventh Pay Commission. In
Cr.P.No.121 of 2016 the issue was enhancement of
maintenance on account of changed circumstances. The
learned Judge, Family Court, Bhubaneswar, upon hearing
both sides and after perusal of records, rejected the
Opposite Party's objection regarding maintainability and
jurisdiction, holding that the proceeding, being one under
Section 127 Cr.P.C., is maintainable as maintenance is a
continuing relief liable to variation upon change in
circumstances.
3.8. Taking judicial notice of the substantial increase
in the cost of living, inflation and the enhanced income of
RPFAM Nos.260 & 293 of 2017 Page 8 of 48
the Opposite Party, who is serving in the Oriental Insurance
Company drawing a basic salary of around ₹52,000/- per
month, apart from DA, the learned Judge, Family Court,
Bhubaneswar found the earlier maintenance of ₹3,000/-
per month to be grossly inadequate. Even though it was
noted that the Son, namely Asad khan, had become major
and had completed his B.Tech degree years back, but the
Court was of the view that still it cannot be presumed that
he is getting very high salary with a meager experience, in
absence of any conclusive evidence to prove his actual
income. Accordingly, the learned Court below, vide the
impugned order dated 07.10.2017, enhanced the
maintenance payable to the Petitioner from ₹3,000/- to
₹8,100/- per month, effective from the date of filing the
petition, i.e., 05.07.2016, with an observation/direction for
adjustment of amount already paid and for clearance of
arrears in four equal monthly installments. Hence, these
Revision Petitions.
3.9. Furthermore, as is revealed from the records,
Cr.P No.164 of 2013 was preferred by the Petitioner for
recovery of study expenses of Rs.8,00,000/-( Eight lakhs
RPFAM Nos.260 & 293 of 2017 Page 9 of 48
only) for her son from the Opposite Party before the learned
Judge Family Court, Bhubaneswar. The learned Judge
Family Court, Bhubaneswar directed for payment of
₹8,00,000/- towards the son's B.Tech educational
expenses. The said order was challenged in RPFAM No.16
of 2018 by the Opposite Party. In RPFAM No.16 of 2018 the
issue was whether a father is legally bound to bear the
educational expenses of a son who attains majority during
the continuance of his studies and has no independent
source of income. This Court dismissed the petition of the
Opposite Party vide judgment dated 08.04.2019. It was held
that a strict interpretation of the date of majority as a cut-
off date may force a child to abandon studies and face
hardship; therefore, a father is duty-bound to provide
maintenance until the completion of the son's or daughter's
education. Emphasizing on the remedial and welfare
oriented nature of maintenance, this Court upheld the said
order and directed payment of the remaining ₹3,50,000/- in
four quarterly installments.
4. The Petitioner, who was appearing in person
before this Court, having no experience and exposer in
RPFAM Nos.260 & 293 of 2017 Page 10 of 48
Court practice and procedure and no legal knowledge, this
Court, vide order dated 25.09.2025, allowed her son Asad
Khan, who is a B-Tech Engineer and accompanying her on
each and every date of hearing, to assist her so also assist
this Court during hearing of the cases.
5. Reiterating the grounds urged in the petition, it
was submitted by Mr. Asad that the impugned order of the
learned Judge, Family Court, Bhubaneswar, enhancing the
maintenance to ₹8,100/- per month, though an
improvement upon the meager amount of ₹3,000/- earlier
granted, remains grossly insufficient to meet the
Petitioner's basic needs as per the present cost of living, her
age, and her medical condition. She is now about 56 years
old, suffering from multiple ailments, and entirely
dependent on the monthly maintenance as she has no
source of independent income. Owing to persistent
inflation, her advancing age, and rising living costs, the
Petitioner had sought further enhancement of
maintenance, invoking Section 127 Cr.P.C. Mr. Asad
submitted, the Family Court, after due consideration,
though enhanced the maintenance to ₹8,100/- per month,
RPFAM Nos.260 & 293 of 2017 Page 11 of 48
such modest enhancement does not adequately reflect the
Opposite Party's financial capacity, who is presently
serving as the Divisional Manager in the Oriental
Insurance Company Limited, drawing a monthly salary of
over Rupees One Lakh.
5.1. It was further submitted by Mr. Asad that, he
as well as his mother, i.e., the Petitioner, continue to reside
in the residential premises situated at Plot
No.516/1678/2869, Adarsh Vihar, Bhubaneswar, which
was allegedly purchased and constructed with his mother's
parental funds, but was fraudulently registered in his
father's name. The said property is the subject matter of
dispute in Civil Suit No.115 of 2008, pending before the
competent Civil Court. It was denied that the Petitioner
earns rental income or runs a profitable beauty parlour,
holding that her fragile health and limited means prevent
her from engaging in any gainful occupation.
5.2. It was also argued that the Act, 1986, read
harmoniously with Sections 125, 126 and 127 Cr.P.C.,
ensures that a divorced woman is not rendered destitute,
and that maintenance is a continuing relief, subject to
RPFAM Nos.260 & 293 of 2017 Page 12 of 48
alteration with change in circumstances. The moral and
legal duty of the divorced husband persists despite his
remarriage, particularly when his financial position has
improved substantially. In light of these facts, it was prayed
for a further enhancement of maintenance to at least one-
third of the Opposite-Party's monthly salary, or
alternatively, for grant of a permanent alimony
commensurate with Opposite Party's income and lifestyle,
to be deposited directly into the Petitioner's bank account
for her lifelong sustenance.
5.3. It was further argued that the Opposite Party,
being a Deputy Manager, who is now allegedly promoted to
the post of Divisional Manager in the Oriental Insurance
Company Ltd., is earning over ₹1,00,000/- per month,
apart from other benefits and having ancestral agricultural
property in Village Oldhi, District Kendrapara and is fully
capable of meeting the proposed settlement without
hardship. Accordingly, it was prayed to pass a
comprehensive order of settlement ensuring her financial
security, dignity and independence for the remainder of her
life.
RPFAM Nos.260 & 293 of 2017 Page 13 of 48
5.4. It was argued by Mr. Asad that, in C.M.C.
No.61 of 2004, relying on Daniel Latifi & Another V.
U.O.I, reported in (2001) 7 SCC 740, the learned Court
below held that a Muslim husband's liability extends
beyond the iddat period. Further, relying on the judgment
in Noor Saba Khatun v. Mohd. Quasim, reported in
(1997) 6 SCC 233, Rs. 1,500/- each was awarded as
monthly maintenance in favour of the Petitioner as well as
himself, then he being a minor, under Section 125 CrPC.
The Order was upheld by this Court in C.R.P. No.751 of
2006, despite taking a stand by the Opposite Party that the
learned Court below was incompetent to pass such an
order. Later, in C.M.C. No.141 of 2009, the Petitioner
sought for enhancement of maintenance under Section 127
CrPC, which was renumbered as CrP No.36 of 2011, being
transferred to the Court of learned Judge, Family Court,
Bhubaneswar. The learned Judge, Family Court allowed
such application, treating the earlier order as one under
Section 125 CrPC. The order was again upheld by this
Court in RPFAM No.105 of 2011 affirming the Court's
power to enhance maintenance considering the rise in cost
RPFAM Nos.260 & 293 of 2017 Page 14 of 48
of living and change in circumstances. Hence, it is no more
open to the Opposite Party to take the selfsame ground to
assail the impugned order.
5.5. Moreover, the Petitioner has relied upon a recent
judgment of the Supreme Court in Mohd. Abdul Samad v.
State of Telangana, reported in (2025) 2 SCC 49, wherein
it was held that a divorced Muslim woman has the option to
seek relief under either the Act, 1986 or Section 125 of
Cr.P.C., or both, as the 1986 Act is not in derogation, but
in addition to Section 125 Cr.P.C. It was further clarified
vide the said judgment that maintenance must be
reasonable and sufficient, not minimal. Hence, it was
argued that the Opposite Party, who is now serving as
Regional Manager at Oriental Insurance Company,
Bhubaneswar, has sufficient means to comply with the
enhanced maintenance order.
6. Per contra, learned Counsel for the Opposite-
Party submitted that the impugned order of enhancement
is primarily on grounds of jurisdiction and proportionality
vide RPFAM No. 293 of 2017. It was submitted that the
original maintenance order was passed under Section 3(2)
RPFAM Nos.260 & 293 of 2017 Page 15 of 48
of the Act, 1986 in C.M.C. No. 61 of 2004. Therefore,
recourse to Section 127 Cr.P.C. for further enhancement is
legally impermissible, since the provisions of Cr.P.C apply
only where both parties have expressly opted for the same
by filing a declaration, as required under Section 5 of the
1986 Act ,which, in this case, was never done.
6.1. It was further argued that, the 1986 Act provides
a distinct and self-contained scheme governing the rights of
a divorced Muslim woman. Under Section 4 of the said Act,
1986 post-divorce maintenance is chargeable not upon the
former husband but upon her relatives or, failing them,
upon the State Wakf Board. Accordingly, it was argued that
the impugned enhancement, passed under Section 127
Cr.P.C., is without jurisdiction and liable to be set aside.
6.2. It was also argued that the Petitioner resides in
the residential house of the Opposite-Party at Adarsh Vihar,
Bhubaneswar, from which she allegedly earns rental
income and operates a beauty parlour generating
approximately around ₹20,000/- per month. The Opposite
Party himself, following their separation, has been living in
a rented accommodation at Bhubaneswar. The Opposite
RPFAM Nos.260 & 293 of 2017 Page 16 of 48
Party has since remarried to one Ms. Ume Fazal on
08.05.2005 and, from this wedlock, has a daughter namely,
Sabina Khan, born on 29.03.2006. He is also responsible
for the care of his aged and ailing mother, besides being
burdened with loan repayments pertaining to the said
residential property at Bhubaneswar, which is mortgaged
with the Oriental Insurance Co-operative Bank.
6.3. It was argued that the enhancement of
maintenance from ₹3,000/- to ₹8,100/- per month is
excessive, arbitrary, and disproportionate to the
responsibilities of the Opposite-Party, particularly
considering that their son Asad born in the year 1995,
attained majority on 29.09.2013 and has been gainfully
employed, as confirmed by a RTI response from KIIT
University vide letter dated 20.07.2017, marked as Ext-S
before the Court below, showing his campus selection and
employment. It was further argued that, under Section 4 of
the 1986 Act, the divorced wife must seek support from her
son and other relatives, and not from her ex-husband
beyond the iddat period.
RPFAM Nos.260 & 293 of 2017 Page 17 of 48
6.4. The learned Counsel for the Opposite Party also
referred to Cr. P No.164 of 2013, wherein the Family Court,
Bhubaneswar had directed the Opposite Party to pay
₹8,00,000/- towards his son's educational expenses for his
B.Tech course. He emphasized on Opposite Party's
compliance with all previous maintenance orders, his
financial constraints due to EMIs and family
responsibilities, and his sincere efforts to bring an end to a
long-standing matrimonial litigation spanning over last
fifteen years.
6.5. Drawing attention of this Court to the Training
and Placement Department Notice dated 19th January,
2017 of KIIT University, which indicates the name of
successful candidates, including the name of Asad Khan at
Serial No.1, which forms part of Exhibit-S, learned Counsel
for Opposite Party ultimately stated that the Petitioner,
being a divorced Muslim wife, should primarily seek
maintenance from her son, who has now become self-
sufficient and gainfully employed. Despite proving so, the
learned Court below enhanced the maintenance. It was
further submitted that there is no material demonstrating
RPFAM Nos.260 & 293 of 2017 Page 18 of 48
any changed circumstances warranting enhancement of the
maintenance earlier granted, and that the mere increase in
the Opposite Party's salary post-divorce cannot, by itself,
constitute a ground for enhancement.
6.6. Placing reliance on the Judgment of the
Supreme Court in Daniel Latifi (supra), learned Counsel
for Opposite Party submitted that the provisions of Sections
3, 4 and 5 of the Act, 1986 have an overriding effect by
virtue of the non obstante clause "notwithstanding
anything contained in any other law for the time being in
force" and therefore excludes the applicability of the Family
Courts Act to the present proceedings. It was thus
submitted that the claims for enhancement of maintenance
under Section 127 CrPC, so also Family Courts Act are
legally untenable in view of the special statutory scheme
governing divorced Muslim women.
7. From the pleadings and submissions of the
parties, the following seminal issues emanate for
consideration;
RPFAM Nos.260 & 293 of 2017 Page 19 of 48
A. Since the Petitioner initially sought maintenance
for herself so also for her son by filing CMC No. 61
of 2004 under Section 3(2) of the Act, 1986, is she
precluded from invoking Section 127 Cr.P.C. for
enhancement of such maintenance?
B. Whether CrP. No.121 of 2016 preferred by the
Petitioner for further enhancement of maintenance
under Section 127 Cr.P.C. is maintainable?
C. Whether the enhancement of maintenance made
vide the impugned order passed in CrP No. 121 of
2016 needs any interference by enhancing it
further, as prayed by the Petitioner in RPFAM No-
260 of 2017, or needs to be set aside, as prayed
by the Opposite Party in RPFAM No-293 of 2017?
8. So far as Points No.A and B, the same being
interlinked, are taken up together for the sake of brevity.
8.1. It emerges from the records that, on earlier
occasions, the Opposite Party has consistently taken the
stand before this Court that since the Petitioner initially
sought maintenance by filing CMC No. 61 of 2004 under
Section 3(2) of the 1986 Act, she is precluded from seeking
enhancement of maintenance under Section 127 Cr.P.C.
8.2. It is noteworthy to mention here that, in C.M.C.
No. 61 of 2004, filed under Section 3(2) of the Act, 1986,
RPFAM Nos.260 & 293 of 2017 Page 20 of 48
the learned S.D.J.M., Bhubaneswar, by order dated
29.07.2006, directed payment of ₹1,500/- per month each
to the Petitioner and her minor son. The Opposite Party
challenged the said order in Criminal Revision No. 751 of
2006. However, by judgment dated 03.02.2009, this Court
dismissed the Revision Petition and upheld the said order
passed by the learned S.D.J.M., Bhubaneswar.
8.3. Paragraphs 7 and 9 of the said judgment
passed in Crl. Revision No. 751 of 2006, being relevant, are
reproduced herein below:-
"7. It was strenuously contended that in an
application filed under the Act, the learned
Magistrate could not have awarded maintenance to
opposite party no.2 for more than a period of two
years. It was argued that while dealing with the
application for maintenance under the Act, the
Magistrate has no scope to exercise power under
Section 125 Cr.P.C. However, it is well settled
that wrong nomenclature of a petition is not
binding on the Court. In Raj Pal and others-vrs-
State of U.P.: 2003 (2) CRJ 87, it has been held by
the Allahabad High Court that it is well settled that
labeling a wrong will not oust the jurisdiction of the
Court, it can be traced. In Hazi Farzand Ali -vrs-
Mst. Noorjahan: 1988 CRI. L.J. 1421, joint
application for maintenance filed by divorced
Muslim woman on her behalf and on behalf of
her children was treated by Rajastan High
Court as an application for maintenance by
each of her minor children under Section 125
Cr. P.C. whereas her application was decided
RPFAM Nos.260 & 293 of 2017 Page 21 of 48
in accordance with the Act. It has been held by
the Hon'ble Supreme Court in Iqbal Bano-Vrs-State
of U.P. : 2007 (6) S.C.C. 785 that proceedings under
Section 125 Cr.P.C. are civil in nature and even if
the Court noticed that there was a divorced Muslim
woman who had made an application under
Section 125 of the Cr. P.C., it was open to the Court
to treat the same as a petition under the Act
considering the beneficial nature of the legislation
especially since proceedings under Section 125 of
the Cr. P.C. and under the Act are tried by the same
Court.
9. In Mohammed Abdul Hai alias farooq Pasha
Vrs. Saleha Khatoon & Ors: 2007 CRI.L.J.1394,
It has been held by the Bombay High Court that as
far as children are concerned, it is clear that if the
divorced Muslim woman claims maintenance for the
minor children under Section 3(l)(b), the former
husband is bound to provide maintenance for a
period of two years from the respective dates of
birth of such children. Right under Section 3(l)(b) is
given to the divorced woman. In fact, the Act
itself is enacted for the protection of certain
rights of Muslim Woman on their divorce; The
Act has no relevance to the rights of the
children to claim maintenance from their
father. Their rights are covered by Section
125. Cr.P.C. and that right is not taken away
by the provisions of Section 3(l)(b) of the Act.
(Emphasis Supplied)
8.4. Subsequently, in C.M.C. No.141 of 2009, which
was re-numbered as Cr. P No.36 of 2011, being transferred
to the Court of learned Judge, Family Court,
Bhubaneswar, the maintenance was enhanced to ₹3,000/-
per month each under Section 127 Cr. P.C. by order dated
25.02.2011. Despite taking a similar stand, as taken in the
RPFAM Nos.260 & 293 of 2017 Page 22 of 48
present RPFAM No.293 of 2017, the said enhancement was
affirmed by this Court in RPFAM No.105 of 2011 vide
judgment dated 25.02.2015. Paragraph Nos.9, 11, 12, 13 &
14 of the said judgment, being relevant, are reproduced
herein below:-
"9. Thus, as per Clause (f) Explanation to Sub-
Section (1) of Section 7 of the Family Courts
Act any suit or proceeding for maintenance
can be taken up and dispose of by the Family
Court. Since in essence an application to seek
enhancement of maintenance, is a proceeding
for maintenance and hence this Court is of the
opinion that as per the ruling given in the
case of SHABANA BANO V. IMRAN KHAN (supra)
the Judge, Family Court has jurisdiction to
decide cases under Section 3 of the Act.
11. Thus, the constitution bench of the Supreme
Court has held that it is the duty of the husband to
make reasonable and fair provision for the divorced
wife which obviously includes her maintenance as
well. Such a reasonable and fair provision
extending beyond the iddat period must be made
by the husband within the iddat period in terms of
Section 3(1)(a) of the Act. The Supreme Court
further held that Liability of Muslim husband
to his divorced wife arising under Section
3(l)(a) of the Act to pay maintenance is not
confined to iddat period.
12. Giving purposive interpretation to the
provision, the Supreme Court in the case of IQBAL
BANO V. STATE OF U.P. AND ANOTHER; (2007)
6 Supreme Court Cases 785 held that a Muslim
husband is liable to make reasonable and fair
provision for the future of the divorced wife which
obviously includes her maintenance as well. Such a
reasonable and fair provision extending beyond the
RPFAM Nos.260 & 293 of 2017 Page 23 of 48
iddat period must be made by the husband within
the iddat period in terms of Section 3(1) (a) of the
Act. Now, the question, therefore, remains
whether the Court has also jurisdiction to
enhance the said amount of maintenance.
13. The Act was enacted to protect the rights of
Muslim women who have been divorced by, or have
obtained divorce from, their husband and to provide
for matters connected therewith or incidental
thereto. Thus, it can be said that this is a
progressive legislation aimed at protecting the
rights of divorced Muslim women. It is apparent
from the statement of objects and reasons of the Act
that a divorced Muslim woman shall be entitled to a
reasonable and fair provision and maintenance
within the period of iddat by her former husband
and in case she maintains the children born to her
before or after her divorce, such reasonable
provision and maintenance would be extended to a
period of two years from the dates of birth of the
children. Thus, from the expression "such
reasonable provision and maintenance"
should be fixed taking into consideration the
needs of the divorced woman, the standard of
life enjoyed by her during her marriage and
the means of her former husband or, as the
case may be, for payment of such mahr or
dower or the delivery of such properties
referred to in clause (d) of sub-section (1) to the
divorced woman.
14. Thus, it is clear that while awarding
maintenance, the needs of the divorced woman, the
standard of life enjoyed by her during her marriage
and the means of her former husband is to be taken
into consideration. Now the time changes and in the
meantime the need of the divorced woman becomes
more because of rise in prices and other related
factors as well as the education of her children and
to maintain the standard of life she was enjoying
before her marriage and the growth in the income of
her former husband. This Court is of the opinion
that a purposive interpretation of the Act
would also include the power of the
Magistrate or Judge, Family Court to enhance
RPFAM Nos.260 & 293 of 2017 Page 24 of 48
the maintenance granted to a divorced Muslim
woman after lapse of sometime of passing of
the final order under Section 3 of the Act.
Accordingly, this issue is answered."
(Emphasis Supplied)
8.5. Law is well settled that, "wrong nomenclature of
a petition is not binding on the Court" and in the present
case also the coordinate Bench has taken note of such
point. That apart, Crl. Revision No.751 of 2006 was decided
by the coordinate Bench treating such joint application for
maintenance filed by the Petitioner on her behalf so also on
behalf of her son as an application for maintenance under
Section 125 Cr. P.C.
8.6. From the consistent course of proceedings and
orders passed by the learned Court below from time to
time, as detailed above, so also the confirming judgment
passed by this Court in Criminal Revision No. 751 of 2006,
wherein it was held that wrong nomenclature of a Petition
is not binding on the Court, it is quite evident that the
initial maintenance in C.M.C. No.61 of 2004 was effectively
granted under 125 Cr. P.C. Therefore, this Court is of the
view that no separate declaration under Section 5 of the
RPFAM Nos.260 & 293 of 2017 Page 25 of 48
Act, 1986 was required, as urged before this Court by the
learned Counsel for the Opposite-Party, and it can safely be
presumed that the Petitioner had conceded to be governed
under the provisions of Section 125 Cr.P.C.
9. That apart, in Shabana Bano vs. Imran Khan,
reported in (2010) 1 SCC 666, the Supreme Court held as
follows;
"7. Under Section 125(1)(a), a person who, having
sufficient means, neglects or refuses to maintain his
wife who is unable to maintain herself, can be
asked by the court to pay a monthly maintenance
to her at a rate not exceeding five hundred rupees.
By clause (b) of the Explanation to Section
125(1), "wife" includes a divorced woman who
has not remarried. These provisions are too clear
and precise to admit of any doubt or refinement.
The religion professed by a spouse or by the
spouses has no place in the scheme of these
provisions. Whether the spouses are Hindus or
Muslims, Christians or Parsis, pagans or
heathens, is wholly irrelevant in the
application of these provisions. The reason for
this is axiomatic, in the sense that Section
125 is a part of the Code of Criminal
Procedure, not of the civil laws which define
and govern the rights and obligations of the
parties belonging to particular religions, like
the Hindu Adoptions and Maintenance Act, the
Shariat, or the Parsi Matrimonial Act. Section
125 was enacted in order to provide a quick
and summary remedy to a class of persons
who are unable to maintain themselves. What
difference would it then make as to what is
the religion professed by the neglected wife,
child or parent? Neglect by a person of
RPFAM Nos.260 & 293 of 2017 Page 26 of 48
sufficient means to maintain these and the
inability of those persons to maintain
themselves are the objective criteria which
determine the applicability of Section 125.
Such provisions, which are essentially of a
prophylactic nature, cut across the barriers of
religion. True, that they do not supplant the
personal law of the parties but, equally, the religion
professed by the parties or the state of the personal
law by which they are governed, cannot have any
repercussion on the applicability of such laws
unless, within the framework of the Constitution,
their application is restricted to a defined category
of religious groups or classes. The liability imposed
by Section 125 to maintain close relatives who are
indigent is founded upon the individual's obligation
to the society to prevent vagrancy and destitution.
That is the moral edict of the law and morality
cannot be clubbed with religion. Clause(b) of the
Explanation to Section 125(1), which defines
"wife" as including a divorced wife, contains
no words of limitation to justify the exclusion
of Muslim women from its scope. Section 125
is truly secular in character."
(Emphasis supplied)
9.1. Similarly, paragraph Nos. 31 and 33 in Danial
Latifi (supra), which judgment was referred to by both the
parties during argument, being germane, are reproduced
below for ready reference:
"31. Even under the Act, the parties agreed
that the provisions of Section 125 CrPC would
still be attracted and even otherwise, the
Magistrate has been conferred with the power
to make appropriate provision for
maintenance and, therefore, what could be
earlier granted by a Magistrate under Section
125 CrPC would now be granted under the
RPFAM Nos.260 & 293 of 2017 Page 27 of 48
very Act itself. This being the position, the Act
cannot be held to be unconstitutional."
"33. In Shah Bano case [(1985) 2 SCC 556 : 1985
SCC (Cri) 245] this Court has clearly explained as to
the rationale behind Section 125 CrPC to
make provision for maintenance to be paid to
a divorced Muslim wife and this is clearly to
avoid vagrancy or destitution on the part of a
Muslim woman. The contention put forth on behalf
of the Muslim organisations who are interveners
before us is that under the Act, vagrancy or
destitution is sought to be avoided but not by
punishing the erring husband, if at all, but by
providing for maintenance through others. If for any
reason the interpretation placed by us on the
language of Sections 3(1)(a) and 4 of the Act is not
acceptable, we will have to examine the effect of the
provisions as they stand, that is, a Muslim woman
will not be entitled to maintenance from her
husband after the period of iddat once the talaq is
pronounced and, if at all, thereafter maintenance
could only be recovered from the various persons
mentioned in Section 4 or from the Wakf Board.
This Court in Olga Tellis v. Bombay Municipal
Corpn. [(1985) 3 SCC 545] and Maneka
Gandhi v. Union of India [(1978) 1 SCC 248]
held that the concept of "right to life and
personal liberty" guaranteed under Article 21
of the Constitution would include the "right to
live with dignity". Before the Act, a Muslim
woman who was divorced by her husband was
granted a right to maintenance from her husband
under the provisions of Section 125 CrPC until she
may remarry and such a right, if deprived, would
not be reasonable, just and fair. Thus the
provisions of the Act depriving the divorced
Muslim women of such a right to maintenance
from her husband and providing for her
maintenance to be paid by the former husband
only for the period of iddat and thereafter to
make her run from pillar to post in search of
her relatives one after the other and
ultimately to knock at the doors of the Wakf
Board does not appear to be reasonable and
RPFAM Nos.260 & 293 of 2017 Page 28 of 48
fair substitute of the provisions of Section 125
CrPC. Such deprivation of the divorced Muslim
women of their right to maintenance from their
former husbands under the beneficial provisions of
the Code of Criminal Procedure which are otherwise
available to all other women in India cannot be
stated to have been effected by a reasonable, right,
just and fair law and, if these provisions are less
beneficial than the provisions of Chapter IX of the
Code of Criminal Procedure, a divorced Muslim
woman has obviously been unreasonably
discriminated and got out of the protection of the
provisions of the general law as indicated under the
Code which are available to Hindu, Buddhist, Jain,
Parsi or Christian women or women belonging to
any other community. The provisions prima
facie, therefore, appear to be violative of
Article 14 of the Constitution mandating
equality and equal protection of law to all
persons otherwise similarly circumstanced
and also violative of Article 15 of the
Constitution which prohibits any
discrimination on the ground of religion as
the Act would obviously apply to Muslim
divorced women only and solely on the ground
of their belonging to the Muslim religion. It is
well settled that on a rule of construction, a
given statute will become "ultra vires" or
"unconstitutional" and, therefore, void,
whereas on another construction which is
permissible, the statute remains effective and
operative the court will prefer the latter on
the ground that the legislature does not
intend to enact unconstitutional laws. We
think, the latter interpretation should be
accepted and, therefore, the interpretation
placed by us results in upholding the validity
of the Act. It is well settled that when by
appropriate reading of an enactment the validity of
the Act can be upheld, such interpretation is
accepted by courts and not the other way round."
(Emphasis Supplied)
RPFAM Nos.260 & 293 of 2017 Page 29 of 48
9.2. In Mohd. Abdul Samad (supra), which was
passed after an exhaustive consideration of a catena of
precedents on the subject and which has also been duly
relied upon by the Petitioner, it was held as follows;
"91. In my view, the rights created under the
provisions of the 1986 Act are in addition to
and not in derogation of the right created
under Section 125CrPC, and the same is the
basis for this Court's conclusion in Danial
Latifi v. Union of India, reported in (2001) 7 SCC
740 : (2007) 3 SCC (Cri) 266] to save the 1986 Act
from the vice of unconstitutionality. This is because
nowhere in the judgment of this Court in the
aforesaid case is there a reference to any bar under
the provisions of the 1986 Act and neither has this
Court created any such bar in the aforesaid
judgment for a divorced Muslim woman to approach
the court under Section 125CrPC for maintenance.
Thus, the non obstante clause in sub-section (1) of
Section 3 cannot result in Sections 3 and 4 of the
1986 Act whittling down the application of Section
125CrPC and other allied provisions of the CrPC to
a divorced Muslim woman. Therefore, if a
divorced Muslim woman approaches the
Magistrate for enforcement of her rights under
Section 125CrPC, she cannot be turned away
to seek relief only under Sections 3 and 4 of
the 1986 Act as is sought to be contended by
the appellant herein. In other words, such a
divorced Muslim woman is entitled to seek
recourse to either or both the provisions. The
option lies with such a woman. The court would
have to ultimately balance between the amount
awarded under the 1986 Act and the one to be
awarded under Section 125CrPC."
"94. I find that Section 5 provides for a situation
where a Muslim woman and her former husband
RPFAM Nos.260 & 293 of 2017 Page 30 of 48
decide to voluntarily elect to pursue the remedies
under Sections 125 to 128CrPC by way of a written
application on the first date of hearing of an
application under Section 3 of the 1986 Act. The
provision seeks to provide an option that can be
mutually exercised by the Muslim woman and her
former husband. The deliberate use of the words
"option" and "former husband" demonstrates that
Section 5 does not statutorily confine the
circumstances under which the claim of
maintenance of a divorced Muslim woman can be
governed under the secular law of maintenance.
Similarly, Section 7, being a transitional provision,
only determines that every pending application
under Section 125CrPC for maintenance at the time
of commencement of the 1986 Act would be
disposed of in accordance with the provisions of the
1986 Act. The purpose of a transitional provision is
to mitigate uncertainty from the minds of the
litigants who were faced with the peculiar situation
with respect to pending maintenance applications
and the possibility of fresh applications being filed
under the 1986 Act as per the option of the parties.
The use of the expression in Section 7 of the 1986
Act "notwithstanding anything contained in that
Code", with respect to the CrPC does not indicate
the intent to abrogate the independent right of a
Muslim woman, as a victim of neglect or destitution,
to claim maintenance from her husband. Moreover,
Section 7 is subject to Section 5 of the said Act.
Also, a transitional provision is of a temporary
nature. On the strength of a transitional
provision the main Act i.e. the 1986 Act
cannot be interpreted in a manner so as to
restrict the rights of a divorced Muslim
woman to other available remedies such as
under Section 125CrPC."
"102. The question of interpreting Section 3 of the
1986 Act should also be construed from the
perspective of access to justice. Therefore, a
technical or pedantic interpretation of the 1986 Act
would stultify not merely gender justice but also the
constitutional right of access to justice for the
RPFAM Nos.260 & 293 of 2017 Page 31 of 48
aggrieved Muslim divorced women who are in dire
need of maintenance. This Court would not
countenance unjust or Faustian bargains
being imposed on women. The emphasis is on
sufficient maintenance, not minimal amount.
After all, maintenance is a facet of gender
parity and enabler of equality, not charity. It
follows that a destitute Muslim woman has
the right to seek maintenance under Section
125CrPC despite the enactment of the 1986
Act. Thus, an application for maintenance
under Section 125CrPC would not prejudice
another application under Section 3 of the
1986 Act insofar as the latter is additional in
nature and does not pertain to the same
requirements sought to be provided for by
Section 125CrPC. One cannot be a substitute
for or supplant another; rather it is in
addition to and not in derogation of the
other."
"115. What emerges from our separate but
concurring judgments are the following
conclusions:
115.1. Section 125CrPC applies to all married
women including Muslim married women.
115.2. Section 125CrPC applies to all non-Muslim
divorced women.
115.3. Insofar as divorced Muslim women are
concerned,
115.3.1. Section 125CrPC applies to all such
Muslim women, married and divorced under the
Special Marriage Act in addition to remedies
available under the Special Marriage Act.
115.3.2. If Muslim women are married and
divorced under Muslim law then Section
125CrPC as well as the provisions of the 1986
Act are applicable. Option lies with the
Muslim divorced women to seek remedy under
RPFAM Nos.260 & 293 of 2017 Page 32 of 48
either of the two laws or both laws. This is
because the 1986 Act is not in derogation of
Section 125CrPC but in addition to the said
provision.
115.3.3. If Section 125CrPC is also resorted to by a
divorced Muslim woman, as per the definition
under the 1986 Act, then any order passed under
the provisions of the 1986 Act shall be taken into
consideration under Section 127(3)(b)CrPC.
115.4. The 1986 Act could be resorted to by a
divorced Muslim woman, as defined under the said
Act, by filing an application thereunder which could
be disposed of in accordance with the said
enactment.
115.5. In case of an illegal divorce as per the
provisions of the 2019 Act then,
115.5.1. Relief under Section 5 of the said Act could
be availed for seeking subsistence allowance or, at
the option of such a Muslim woman, remedy under
Section 125CrPC could also be availed.
115.5.2. If during the pendency of a petition filed
under Section 125CrPC, a Muslim woman is
"divorced" then she can take recourse under
Section 125CrPC or file a petition under the 2019
Act.
115.5.3. The provisions of the 2019 Act provide
remedy in addition to and not in derogation of
Section 125CrPC."
(Emphasis Supplied)
10. Admittedly, the earlier application of the
Petitioner for enhancement of maintenance under Section-
127 Cr.P.C. in Cr.P No.36 of 2011 was held to be
maintainable and justified by this Court in RPFAM No.105
of 2011, despite taking a similar stand, as has been taken
RPFAM Nos.260 & 293 of 2017 Page 33 of 48
in RPFAM No. 293 of 2017. The said judgment in RPFAM
No.105 of 2011 has attained finality, not being challenged
by the Opposite Party. Hence, this Court is of the view that
it is no more open for the Opposite Party to take such a
stand regarding maintainability so also locus standi of the
Petitioner to move an application for further enhancement
of maintenance under Section 127 Cr.P.C. and such
application is maintainable. This Court is of further view
that, in view of the settled position of law, since there is no
such provision under the Act, 1986 for enhancement of
maintenance awarded under Section 3(2) of the said Act, a
divorced Muslim Woman can move application under
Section 127 Cr.P.C./Section 146 BNSS for enhancement of
maintenance. Since Act, 1986 is not in derogation of the
provisions enshrined under Section 125 to section 128
Cr.P.C., it was open for the Petitioner to take recourse
under the said provisions, as well as the provisions under
the Act, 1986. Accordingly, Points No.A and B are answered
in favour of the Petitioner.
11. So far as Point No-C, the same relates to the
claim of the Petitioner seeking further enhancement of
RPFAM Nos.260 & 293 of 2017 Page 34 of 48
maintenance over and above the amount enhanced vide the
impugned order, vis-a-vis the challenge made by the
Opposite Party (Petitioner in RPFAM No.293 of 2017)
against such enhancement of maintenance from ₹3,000/-
to ₹8,100/- per month.
12. Law is well settled that determination as well as
enhancement of maintenance depend upon several factors,
including the status and position of the parties, the
reasonable requirements of the Claimant towards food,
clothing, shelter and medical expenses, the income and
liabilities of the Respondent, the income, if any, of the
claimant, the number of dependents the Respondent is
obliged to maintain so also the changed circumstances,
which may mandate enhancement or reduction of
maintenance awarded in favour of the Claimant.
12.1. As is revealed from the Trial Court Record
in Crl.P No.36 of 2011, it is evident that the learned Court
below had earlier enhanced the maintenance from ₹1,500/-
to ₹3,000/- per month in favour of the Petitioner as well as
her minor son, totaling ₹6,000/- per month. The said order
was affirmed by this Court in RPFAM No.105 of 2011.
RPFAM Nos.260 & 293 of 2017 Page 35 of 48
12.2. Subsequently, the Petitioner filed Cr.P
No.121 of 2016 seeking further enhancement of
maintenance from ₹6,000/- to ₹35,000/- per month,
primarily on the grounds of steep rise in the cost of living in
the city of Bhubaneswar, inadequacy of the amount
previously awarded to meet her basic needs, escalation in
prices of essential commodities, and alleged promotion of
the Opposite Party to the post of Divisional Manager
drawing a salary of approximately ₹1,00,000/- per month
after implementation of the 7th Pay Commission.
12.3. As is further revealed from the deposition of the
Petitioner, who deposed as P.W.1 in Cr.P.No.121 of 2016, in
her examination-in-chief, she only stated that her monthly
maintenance be enhanced from Rs.3,000/- per month to
Rs.35,000/- per month under changed circumstances.
Though it was pleaded regarding rise in the cost of living in
the city of Bhubaneswar so also increase in the salary of
the Opposite Party, she failed to adduce any evidence to
substantiate such pleadings. The Petitioner also did not
produce any documentary evidence to substantiate her
prayer. Relying on the judgment of this Court in RPFAM
RPFAM Nos.260 & 293 of 2017 Page 36 of 48
No.105 of 2011, she only stated that after pronouncement
of the said judgment there was an increase in the monthly
emolument and the perquisite of the Opposite Party.
Accordingly, a claim was made for enhanced maintenance.
She could not prove what the monthly emolument and the
perquisites of the Opposite Party are. Though, during her
cross-examination, she admitted that her son has
completed B. Tech Degree, but she denied the suggestion
that her son Asad Khan has joined in M/s. J.M.C. Project
India Ltd.
12.4. So far as the Opposite Party, who deposed as
O.P.W.1 in Cr.P.No.121 of 2016, denied his promotion to
the post of Divisional Manager and receiving a salary of
Rs.1,00,000/- per month after introduction of 7th Pay
Commission. In para-38 of his Affidavit Evidence, he stated
that his salary is about Rs.50,872.54 per month after
mandatory deductions. It was also stated that he is
maintaining his family for food, clothing, medicine expenses
for his mother, wife, daughter and himself, education
expenses of daughter and fulfilling other social
responsibilities with much difficulty. That apart, it was also
RPFAM Nos.260 & 293 of 2017 Page 37 of 48
stated by O.P.W No.1 that he has the responsibility of the
future of his daughter like her education and marriage. He
also stated that he has no house to stay anywhere and he is
staying in a rented house, as the house built by him at
Patia, Bhubaneswar has been forcefully occupied by the
Petitioner so also his son, for which he lodged an F.I.R.
before the Chandrasekharpur Police Station vide P.S. Case
No.275 of 2003, which is sub-judice now.
12.5. That apart, in his examination-in-chief, the
O.P.W.1 stated that his son Asad Khan became major on
29.09.2013, for which payment of maintenance to his son
has been stopped from the said date. As per the information
received under the R.T.I. Act, Asad Khan completed his
B.Tech Degree (Civil Engineering) course in May, 2017 and
now must be working in M/s. JMC Projects India Ltd. He
also exhibited the document issued by the KIIT University
showing placement of his son Asad Khan, obtained under
the R.T.I. Act, which was marked as Ext.S without
objection. O.P.W.1 also stated in his examination-in-chief
that as the Petitioner is staying in his house at Patia,
Bhubaneswar, neither she is paying any house rent for her
RPFAM Nos.260 & 293 of 2017 Page 38 of 48
stay at Bhubaneswar nor incurring any expenses towards
the education of her son, as he has already passed B.Tech
Degree in Civil Engineering.
12.6. It is further revealed from the deposition of
O.P.W.1 that, his evidence regarding the Petitioner
forcefully occupying his house at Patia, Bhubaneswar
remained untouched and un-demolished during his cross-
examination. Furthermore no suggestion was given to him
during his cross-examination regarding placement of his
son Asad Khan to be false. Ext.S in the said regard was also
marked without any objection. That apart, on being asked
by the learned Court below, the Opposite Party stated that
he is posted as Deputy Manager in the Oriental Insurance
Company at Udit Nagar Division Office at Rourkela and
getting basic salary of Rs.52,000/- without any grade pay
and Dearness Allowance as per the direction of the
authorities concerned. It was also pleaded and proved that
to build the said house at Patia, Bhubaneswar, he is
repaying Rs.18,000/- per month to his friends and relatives
towards hand loans, apart from E.M.I. of Rs.2709/- per
month towards repayment of housing building loan.
RPFAM Nos.260 & 293 of 2017 Page 39 of 48
12.7. Also, in paras-29 and 30 of his Affidavit
Evidence, O.P.W.1 has detailed about his income and
expenditure as on 26.08.2017, i.e., as on the date of filing
of the Affidavit Evidence.
12.8. So far as income of the Petitioner, it was alleged
that she is earning Rs.20,000/- per month towards house
rent, from the house which she is forcefully occupying, by
letting out a portion of the said house situated at Plot
No.516/1678/2869 and also earning further amount of
Rs.25,000/- per month from the beauty parlour run by her
in the said house. But during his cross-examination,
O.P.W.1 admitted that the said house consists of two bed
rooms and one hall for dining and drawing purpose and he
has not gone to the said house for the last 14 years.
Though he stated in his affidavit evidence that house rent
of Rs.20,000/- is being obtained by the Petitioner by
extending construction of the said house, it was suggested
to O.P.W.1 during his cross-examination that there is no
extension of the said house by making additional
construction. It was further suggested to him that no
beauty parlour is functioning in the said house. The
RPFAM Nos.260 & 293 of 2017 Page 40 of 48
O.P.W.1 also admitted during his cross-examination that he
has not taken any step before the Court below for deputing
a Court Commissioner to ascertain about beauty parlour
allegedly run in the said house so also additional
construction made in the said house. O.P.W.1 further
agreed during his cross-examination that, in the year 2004,
he took a different stand before the learned S.D.J.M.,
Bhubaneswar regarding alleged income of the Petitioner
stating that she was earning Rs.4,000/- by working in
Mayfair Hotel and Rs.5,000/- by making cakes. On being
asked by the Court, O.P.W.1 further stated that he does not
know if the Petitioner has undergone any course for
running a beauty parlour. Hence, from such evidence on
record, it is well revealed that the Opposite Party failed to
prove the income of the Petitioner, though it was proved
that his son Asad, who is a B.Tech Engineer, got an
employment offer in M/s. JMC Projects India Ltd and both
the Petitioner and their son have free shelter in the State
Capital.
12.9. As is revealed from the impugned judgment, the
learned Court below was of the view that, with passage of
RPFAM Nos.260 & 293 of 2017 Page 41 of 48
time, since the monthly salary of the Opposite Party has
increased to several times, it would be improper to continue
with the said amount of maintenance of Rs.3,000/-
awarded in favour of the Petitioner, which appears to be too
meagre for normal life of a woman. Accordingly, it was
enhanced to Rs.8,100/-.
12.10. The learned Court below was also of the view
that with advancing age, both men and women become
weak and they depend on others for their sustenance. It
was further observed that, though it is stated by the
Opposite Party that Asad Khan has already become major
and is earning, there is no evidence with regard to his
actual income. That apart, since Asad Khan has passed
B.Tech in Civil Engineering two to three years back, still it
cannot be presumed that he is getting very high salary with
a meager experience, in absence of any conclusive evidence
to prove his actual income.
13. It is noteworthy to state that, as per the 1st Proviso
under sub-section-1 of Section 4 of the Act, 1986, if a
divorced woman has children, the Magistrate shall order
only such children to pay maintenance to her. In the event
RPFAM Nos.260 & 293 of 2017 Page 42 of 48
of any such children, being unable to pay such
maintenance, the Magistrate shall order the parents of such
divorced woman to pay maintenance to her. Furthermore,
remedy under Section 144(1)(d) of BNSS is also there to
seek monthly allowance for maintenance from the son, if
he, having sufficient means, neglects or refuses to maintain
his father or mother, who is unable to maintain himself or
herself.
14. Admittedly, the Petitioner, who is staying with
her major son, is having a shelter in the posh area of the
State Capital. That apart, her son is a graduate engineer
and must be around 30 years old as on date. No suggestion
was given to O.P.W.1 during his cross-examination that he
is stating falsehood and Asad is not gainfully employed.
However, in absence of any concrete proof regarding Asad's
exact income during the relevant period, prayer of the
Petitioner for enhancement of maintenance could not have
been denied by the learned Court below, as was argued
before this Court.
15. There is no documentary evidence in the TCR
regarding the net or gross salary of the Opposite Party
RPFAM Nos.260 & 293 of 2017 Page 43 of 48
during the relevant period. Rather, apart from what the
Opposite Party stated in his examination-in-chief regarding
his expenses, in para-38 of his affidavit evidence he stated
his salary to be Rs.50872.54 as on 26.08.2017, i.e., the
date of filing affidavit evidence. However, on being asked by
the Court, he stated that his basic salary is Rs.52,000/-
without any grade pay. That apart, he admitted that he gets
Dearness Allowance.
16. Admittedly, in the impugned order there is no
such observation or finding of the learned Court below as to
what was the basis to enhance the maintenance from
Rs.3,000/- to Rs.8,100/- per month. The Supreme Court in
Kulbhushan Kumar (Dr) Vrs. Raj Kumari, reported in
(1970) 3 SCC 129 and in Kalyan Dey Chowdhury Vrs.
Rita Dey Chowdhury Nee Nandy, reported in (2017) 14
SCC 200, held that awarding approximately 25% of the
husband's net income as maintenance would be just and
reasonable. In the present case, as per the admission of the
Opposite Party, his basic salary was ₹52,000/- per month
as on 26.08.2017. Twenty-five percent thereof comes to
₹13,000/- per month.
RPFAM Nos.260 & 293 of 2017 Page 44 of 48
17. At this stage, it is noteworthy to mention here
that, the Opposite Party , apart from paying the enhanced
maintenance of Rs.3000/- to the Petitioner so also equal
amount to her son , till he became major, being directed
by the learned Judge, Family Court, Bhubaneswar, in Cr.P.
No. 164 of 2013, which was subsequently confirmed by this
Court in RPFAM No. 16 of 2018, has paid an amount of
₹8,00,000/- to his son Asad Khan towards completion of
his professional education.
18. That apart, admittedly, Asad Khan is staying
with the Petitioner (his mother) at Patia in the house built
by the Opposite Party by incurring loans and Asad is a
graduate engineer. They have no issue regarding shelter.
The learned Court below was of the view that, even though
the Son, namely Asad khan, had become major and had
completed his B.Tech degree years back, still it cannot be
presumed that he is getting very high salary with a meager
experience, in absence of any conclusive evidence to prove
his actual income. However, in between, further eight years
have elapsed. It can be well presumed that Asad Khan must
have been gainfully employed in the Company as per the
RPFAM Nos.260 & 293 of 2017 Page 45 of 48
information received under the R.T.I., which was marked as
Ext.S or in some other Company and must be getting a
good salary. It is also admitted fact on record that after
divorce, the Opposite Party has remarried and is having a
daughter, who must be around 19 years old, as she was
around 11 years old as on 26.08.2017. Apart from expenses
towards her higher studies, marriage, the Opposite Party is
having obligations towards his family so also his old ailing
mother. That apart, he is repaying the house building loan,
hand loan, so also paying maintenance to the Petitioner as
per the previous orders passed by the learned Court below.
19. Taking into consideration the totality of
circumstances, particularly the fact that the Petitioner is
residing in the house at Patia registered in the name of the
Opposite Party along with her major son, who is
professionally qualified and is capable of maintaining her,
and keeping in view the obligations and liabilities of the
Opposite Party, as detailed above and his present status,
this Court deems it just and proper to enhance the
maintenance to ₹10,000/- per month, instead of Rs.8,100/-
,payable with effect from 05.07.2016, i.e., the date of filing
RPFAM Nos.260 & 293 of 2017 Page 46 of 48
of Criminal Proceeding No.121 of 2016. Point No.C is
answered accordingly.
20. However, it is made clear that, both the parties
will be at liberty to approach the learned Court below for
further enhancement or reduction or stoppage of
maintenance in the event of changed circumstances, such
as increase in the salary of the Opposite Party, employment
or improved earnings of the son Asad Khan, or gainful
employment or earning of the Petitioner.
21. As is revealed from the record, this Court, in
RPFAM No.293 of 2017, vide order dated 12.04.2018,
stayed the operation of the impugned order subject to
payment of maintenance at the pre-enhanced rate, i.e., @
Rs.3000/- per month. Hence, it is directed that, in addition
to the enhanced maintenance of Rs.10,000/- per month,
the Opposite Party shall also pay Rs.20,000/- to the
Petitioner every month towards differential arrears w.e.f.
January,2026 till adjustment of the entire arrears. Such
payments shall be made regularly as per the prevalent
mode of payment, as directed by this Court in W.P.(Crl.) No.
372 of 2009, which was decided on 23.12.2009. It is made
RPFAM Nos.260 & 293 of 2017 Page 47 of 48
clear that the payments already made to the Petitioner
@Rs.3000/- per month till date shall be adjusted from the
revised maintenance amount payable to the Petitioner.
22. It is made further clear that any observation
made herein shall not influence the concerned Civil Court,
while adjudicating Civil Suit No.115 of 2008 pending
between the parties regarding right, title and interest over
House No.516/1678/2869, situated at Patia,
Bhubaneswar.
23. With the aforesaid observation and direction,
the RPFAM No.260 of 2017 stands allowed to the effect
indicated above and disposed of accordingly. Consequently,
RPFAM No.293 of 2017 stands dismissed. No order as to
costs.
...................................
S.K. MISHRA, J.
Orissa High Court, Cuttack The 20th January, 2026/Prasant Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR PRADHAN Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 21-Jan-2026 10:15:42 RPFAM Nos.260 & 293 of 2017 Page 48 of 48