Orissa High Court
Sri Santosh Kumar Mishra vs State Of Odisha on 29 April, 2026
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.1709 of 2022
An application under Section 482 of the Code of Criminal Procedure
Sri Santosh Kumar Mishra .... Petitioner
-versus-
1. State of Odisha
2. Smt. Sudeepta Satpathy @ Mishra .... Opposite Parties
Advocates who appeared in this case:
For Petitioner : Mr. Biswaranjan Mohapatra,
Advocate
For Opposite Parties : Mr. Amitabh Pradhan, ASC
Mr. Sidhant Sarangi,
Senior Advocate
CORAM:
HON'BLE MISS JUSTICE SAVITRI RATHO
JUDGMENT
--------------------------------------------------------------------------------
Date of Hearing: 23rd April, 2026 Date of Judgment: 29th April, 2026
-------------------------------------------------------------------------------- Savitri Ratho, J. The CRLMC has been filed challenging the judgment dated 27.02.2020 passed by the learned Judge, Family Court, Berhampur, District-Ganjam in Criminal Proceeding No. 255 of 2017, filed by the Opposite Party No. 2 under Section 125 of the Criminal Procedure Code (in short "Cr.P.C") and subsequent order CRLMC No. 1709 of 2022 Page 1 of 26 //2// dated 22.03.2021 passed in Criminal Proceeding No.96 of 2020 by the learned Judge, Family Court, Berhampur issuing D.W. and conditional NBW for non-payment of arrear maintenance. CASE OF THE OPPOSITE PARTIES
2. Marriage between the Petitioner and Opp. Party No.-2 was solemnized on 05.03.2009 as per the Hindu rites and customs. On 30.04.2012, they were blessed with a son - Sainath Mishra. Opposite Party-2 was subjected to physical and mental cruelty by the Petitioner and his family in connection with dowry demands. The Petitioner drove the Opposite Party No.2 out of her matrimonial house at the dead hour of the night by assaulting her mercilessly by means of iron rod and chain without providing food to her and her son He kept their son Sainath while driving her out . The Petitioner is a businessman having landed properties and he is earning handsome money from his business. But the Opposite Party No.2-wife is a helpless lady having no independent source of income. She is fully dependant upon her father for her day-to-day maintenance. Prayer was made for payment Rs.20,000/- (Rupees Twenty Thousand) per month for her maintenance.
CRLMC No. 1709 of 2022 Page 2 of 26
//3// OBJECTION OF THE PETITIONER
3. The Petitioner filed an objection stating that the Opp. Party No.2- wife had lodged the F.I.R. against the Petitioner and his family members before Gunpur P.S. and P.S. Case No.57 dated 07.11.2013 was registered u/s.498(A)/34 of the I.P.C. and has ended in acquittal. A joint petition was filed u/s.13-B of Hindu Marriage Act by the parties before the learned Senior Civil Judge, Gunpur vide MAT Case No.77/2014. But this case was subsequently dropped due to non- prosecution. In the joint petition it had been stated that the parties are staying separately since long due to mutual consent. On the aforesaid grounds the Petitioner prayed for rejection of the petition filed by the Opposite Party No.2.
IMPUGNED ORDERS
4. The learned Judge, Family Court allowed the petition on 27.02.2020, directing the Petitioner to pay a sum of Rs. 6,000/- per month towards monthly maintenance of Opposite Party No. 2 and Rs. 4,000/- per month towards her separate residence, from the date of filing the application , i.e. from 11.09.2017 and to pay the arrear maintenance within three months and the current monthly maintenance amount by the second week of each succeeding month. CRLMC No. 1709 of 2022 Page 3 of 26
//4// On 22.03.2021, the learned Judge Family Court has issued DW and conditional NBW against the petitioner in Cr.P. No. 96 of 2020, filed for execution, as he had not paid anything out of the arrear amount of Rs 3,20,000/- .
SUBMISSIONS PETITIONER
5. Mr. Biswaranjan Mohapatra, learned counsel for the Petitioner has submitted that the learned court below passed the judgment without application of judicial mind to the mandatory provisions of Section 125(4) Cr.P.C., which clearly stipulate that no wife shall be entitled to maintenance if she is living separately from her husband by mutual consent. He has submitted that in view of the averment in the joint petition filed in MAT Case No. 77 of 2014 (C.S. No. 77 of 2014) which is supported by affidavit of the Opposite Party No.2, that the parties are staying separately due to mutual consent and in view of the provision of Section 125 (4) of the Cr.P.C., the Opposite Party No.2 is not entitled for any maintenance. He has also submitted that the entire provision of Section 125 has to be taken into account, including the provision under Section 125 (4) while deciding an application for grant of maintenance. He has further submitted that learned Court CRLMC No. 1709 of 2022 Page 4 of 26 //5// below observed that "Admittedly a joint petition was filed by both the parties u/S. 13-B of Hindu Marriage Act, 1955" before the learned Senior Civil Judge, Gunpur vide MAT Case No. 77/2014 wherein it is affirmed at Page-3(f) that both the wife and husband are living their own life separately since more than last three years prior to filing of MAT case in the year 2014 i.e. preceding to the year 2011, but overreached the mandate of law by holding the Opposite Party No 2 to be entitled to maintenance, for which the order/judgment passed on dt. 27.02.2020 and on 22.03.2021 are liable to be quashed. The provisions contained in Section 125(4) Cr.P.C and 13-B of the Hindu Marriage Act have not been considered nor the averments in the joint petition that they are living separately by mutual consent. Even though the learned Court has observed that "the Opposite Party No.-2-wife has not filed a single paper showing the income of the Petitioner and with regard to his landed properties and homestead land/houses, but he has been directed to pay maintenance. He has submitted that the Petitioner is a businessman and is earning about Rs.4000/- to Rs.5000/- per month which is not sufficient for his maintenance as well as for the maintenance of his minor son and parents. The son is staying with the Petitioner and the Petitioner is looking after him. CRLMC No. 1709 of 2022 Page 5 of 26
//6// He has relied on the decisions in the following cases in support of his submissions:
i. Vitthal Hiraji Jadhav v. Harnabai Vitthal Jadhav and Others: 2003 (4) RCR (Criminal) 790 (Bombay High Court) (para-8) ii. Amarendra Nath Bagui vrs. Gouri Rani Bagui and Others: 1990 Cri.LJ 2415 (Calcutta High Court) (para-7) iii. Pallawi Resources Limited vrs. Protos Engineering Company Private Limited : (2010) 3 SCR 847 (para-13) iv. Gurmit Kaur vrs. Surjit Singh @ Jeet Singh: (1996) 1 SCC 39 v. H.M.K. Ansari and Co. (M/s.) vrs. Union of India: AIR 1984 SC 29 (para-27) OPPOSITE PARTY NO.2
6. Mr. Sarangi, learned counsel for the Opposite Party No.2 has submitted that the petition under Section 13-B of the Hindu Marriage Act, is not a standalone document and cannot be acted upon without an enquiry by the Court if the consent had been freely obtained. The averment in the petition filed in the proceeding under Section 13 - B of the Hindu Marriage Act, was a conditional one and contingent upon happening of certain events which never materialized and hence cannot be relied upon. The joint petition was not acted upon and the CRLMC No. 1709 of 2022 Page 6 of 26 //7// proceeding was dropped. The averments in the petition do not fulfil the requirements of Section - 125 (4) of the Cr.P.C. He relied upon the decision of the Supreme Court in the case of Smt. Sureshta Devi vrs. Om Prakash reported in (1991) 2 SCC 25 in support of his submissions that the proceeding is maintainable and there is no illegality in the impugned order.
STATE COUNSEL
7. Mr. Amitabh Pradhan, learned Additional Standing Counsel appearing for Opposite party No.1 has submitted that the impugned orders do not suffer from any illegality. He has submitted that the averments in the petition under Section- 13 B of the Hindu Marriage Act cannot be acted upon as that had been filed in a different proceeding for the purpose of dissolution of marriage, which never happened for which the proceeding was dropped. He has also submitted that the entire averments in the petition should be taken into account, which would reveal that the Opposite party No 2 was staying separately under compulsion and not out of choice or voluntarily. There were other conditions mentioned in the petition including payment of permanent alimony by the Petitioner which has not been complied with.
CRLMC No. 1709 of 2022 Page 7 of 26
//8// STATUTORY PROVISIONS
8. The provisions of Code of Criminal Procedure and Hindu Marriage Act which are relevant for deciding this case, are extracted below:-
Code of Criminal Procedure "Sec 125. Order for maintenance of wives, children and parents.
(1) If any person having sufficient means neglects or refuses to maintain
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate [*] [The words "not exceeding five hundred rupees in the whole" omitted by Act 50 of 2001, w.e.f.
24.9.2001.), as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: CRLMC No. 1709 of 2022 Page 8 of 26
//9// Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.
[Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct.
Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.] [Inserted by Act 50 of 2001, Section 2 (w.e.f. 24- 9-2001).] Explanation. - For the purposes of this Chapter, -
(a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority,
(b) "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not re-married.
(2) [Any such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and CRLMC No. 1709 of 2022 Page 9 of 26 //10// expenses of proceeding, as the case may be.] [Substituted by Act 50 of 2001, Section 2 (w.e.f. 24-9-2001).] (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] [Substituted by Act 50 of 2001, Section 2 for "allowance" (w.e.f. 24 9-2001).] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Explanation. If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him.
(4) No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] [Substituted by Act 50 of 2001, Section 2 for "allowance" (w.e.f. 24-9-2001).] from her husband under this section if she is living in adultery, or if, without any CRLMC No. 1709 of 2022 Page 10 of 26 //11// sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order."
(emphasis supplied ) Hindu Marriage Act " Sec 13B Divorce by mutual consent.
(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. (2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree."CRLMC No. 1709 of 2022 Page 11 of 26
//12// JUDICIAL PRONOUNCEMENTS
9. In the case of Vitthal Hiraji Jadhav (supra), the Bombay High Court has held as follows:
"8. When the husband and wife are residing separately by mutual consent, such wife looses the right to claim alimony from such husband, in view of provisions of Sub-section (4) of Section 125 of the Code. The language of Sub-section (4) is very clear on this point and there is no scope to deviate from it. The learned Magistrate has obviously committed a legal error and his order is suffering from legal infirmity. The order, which is suffering from legal infirmity cannot be permitted to survive for a moment. Thus, it will have to be quashed by allowing this petition by issuing a writ of certiorari in favour of the petitioner. Thus, petition stands allowed. Both the orders in Misc. Application No. 97/1996 and Criminal Revision Application No. 392 of 1998 stand quashed with no order as to costs."
In the case of Amarendra Nath Bagui (supra), the Calcutta High Court has held as follows:
"7. We are concerned with the last contingency in this case. Admittedly the parties are living separately by mutual consent. The O.P. No. 1 is not, ot, therefore, entitled to maintenance under Section 125, Criminal Procedure Code. She may be entitled to maintenance under the Hindu Marriage Act or in an action for enforcement of the alleged agreement for maintenance but Sub-section (4) of Section 125 which governs the whole of Section 125 including Sub-section (I) is a clear bar to her claim for maintenance. In Nathuram v. Smt. Atar Kurwar,: AIR1969All191 it has been held that where the separate living proceeds from the common desire of the husband and the wife live separately whatever the reason for CRLMC No. 1709 of 2022 Page 12 of 26 //13// the desire may be, it is certainly by mutual consent. Where, therefore, since the passing of the consent decree for judicial separation, the parties have been living separately by mutual consent the wife is not entitled to receive any maintenance under Section 488 Criminal Procedure Code (present Section
125) she may pursue such remedies as may be available under Hindu Marriage Act. In this case separate living proceeded from the common desire of the husband and the wife to live separately and was in face an outcome of a free agreement between the parties. The parties are living separately on mutual consent and O.P. No. 1 is not entitled to maintenance under Section 125, Criminal Procedure Code."
In the case of Pallawi Resources Limited (supra), the Supreme Court has held as follows:
"13. A cardinal principle of statutory interpretation is that a provision in a statute must be read as a whole and not in isolation ignoring the other provisions of that statute. While dealing with a statutory instrument, one cannot be allowed to pick and choose. It will be grossly unjust if the Court allows a person to single out and avail the benefit of a provision from a chain of provisions which is favourable to him. Reference may be made to a constitutional bench decision of this Court in the case of Prakash Kumar v. State of Gujarat: (2005) 2 SCC 409. The Court, in para 30, of that judgment observed as follows:
"30. By now it is well settled principle of law that no part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is also trite that the statute or rules made thereunder should be read as a whole and one provision should be construed with reference to the other provision to make the provision consistent with the object sought to be achieved."CRLMC No. 1709 of 2022 Page 13 of 26
//14// In the case of Gurmit Kaur (supra), the Supreme Court has held as follows:
"6. The concept of living separately by mutual consent arises so long as the marriage subsists and the parties agree to live separately by consent. In other words, during the subsistence of the marriage, if the parties agree to live separately by mutual consent, no party is entitled to lay and claim for maintenance from the other party.
7. In view of the divorce agreement referred to hereinabove, the marital relations have come to a terminus. By virtue thereof, the respondent had already contracted the second marriage. In other words, the first marriage has been put to an end. The appellant thereby became entitled to claim maintenance and will continue to do so, so long as she remains unmarried and she is unable to maintain herself."
In the case of H.M.K. Ansari (supra), the Supreme Court has held as follows:
"27................ The golden rule is that when the words of a statute are clear, plain and unambiguous, that is, they are reasonably susceptible to only one meaning, the Courts are bound to give effect to that meaning irrespective of the consequences, duty of a judge is to expound and not to legislate, is a fundamental rule..........."
In the case of Chaturbhuj vs Sita Bai; (2008) 2 SCC 316, the Supreme Court has held as follows:
"6. The object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who CRLMC No. 1709 of 2022 Page 14 of 26 //15// are unable to support themselves and who have a moral claim to support. The phrase "unable to maintain herself in the instant case would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow. Section 125 CrPC is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v. Veena Kaushal falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat."
In the case of Shamima Farooqui vs Shahid Khan; (2015) 5 SCC 705, the Supreme Court has held as follows:
"18. In this context, we may profitably quote a passage from the judgment rendered by the High Court of Delhi in Chander Parkash Bodh Raj v. Shila Rani Chander Prakash wherein it has been opined thus:
7. ....... an able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and child and he cannot be heard to say that he is not in a position to earn enough to be able to maintain them according to the family standard. It is for such able-bodied person to show to the Court cogent grounds for holding that he is unable, for reasons beyond his control, to earn enough CRLMC No. 1709 of 2022 Page 15 of 26 //16// to discharge his legal obligation of maintaining his wife and child. When the husband does not disclose to the Court the exact amount of his income, the presumption will be easily permissible against him.
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."
In the case of Smt. Sureshta Devi (supra), the Supreme Court has held as follows:
"10. Under sub-section (2) the parties are required to make a joint motion not earlier than six months after the date of presentation of the petition and not later than 18 months after the said date. This motion enables the court to proceed with the case in order to satisfy itself about the genuineness of the averments in the petition and also to find out whether the consent was not obtained by force, fraud or undue influence. The court may make such inquiry as it thinks fit including the hearing or examination of the parties for the purpose of satisfying itself whether the averments in the petition are true. If the court is satisfied or undue that the consent of parties was not obtained by force, fraud or influence and they have mutually agreed that the marriage should be dissolved, CRLMC No. 1709 of 2022 Page 16 of 26 //17// it must pass a decree of divorce.
13. From the analysis of the section, it will be apparent that the filing of the petition with mutual consent does not authorise the court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be a party to the joint motion under sub-section (2). There is nothing in the section which prevents such course. The section does not provide that if there is a change of mind it should not be by one party alone, but by both. The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of the petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub-section (2) of Section 13-B is clear on this point. It provides that "on the motion of both the parties....if the petition is not withdrawn in the meantime, the court shall ... pass a decree of divorce ...". What is significant in this provision is that there should also be mutual consent when they move the court with a request to pass a decree of divorce. Secondly, the court shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the court could make an enquiry and pass a divorce decree even at the instance of one of the parties and CRLMC No. 1709 of 2022 Page 17 of 26 //18// against the consent of the other. Such a decree cannot be regarded as decree by mutual consent.
14. Sub-section (2) requires the court to hear the parties which means both the parties. If one of the parties at that stage says that "I have withdrawn my consent", or "I am not a willing party to the divorce", the court cannot pass a decree of divorce by mutual consent. If the court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutuality and consent for divorce. Mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section 13-B. Mutual consent should continue till the divorce decree is passed. It is a positive requirement for the court to pass a decree of divorce. "The consent must continue to decree nisi and must be valid subsisting consent when the case is heard"." In the case of Rina Kumari @ Rina Devi @ Reena vs Dinesh Kumar Mahto @ Dinesh Kumar Mahato; 2025 INSC 55 , the Supreme Court has held as follows : -
"32. The Indian Evidence Act, 1872, distinguishes between judgments in rem and judgments in personam and Sections 40 to 43 therein stipulates the relevance of existing judgments, orders or decrees in subsequent proceedings in different situations. The relevant provisions are extracted hereunder for ready reference:
40. Previous judgments relevant to bar a second suit or trial:-
The existence of any judgment, order or decree which by law prevents any Court from taking cognizance of a suit or holding a trial is a relevant fact when the question is whether such CRLMC No. 1709 of 2022 Page 18 of 26 //19// Court ought to take cognizance of a such suit, or to hold such trial.
41. Relevancy of certain judgments in probate, etc., jurisdiction: - A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial admiralty or insolvency jurisdiction which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.
Such judgment, order or decree is conclusive proof-- that any legal character, which it confers accrued at the time when such judgment, order or decree came into operation; that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, [order or decree] declares it to have accrued to that person;
that any legal character which it takes away from any such person ceased at the time from which such judgment, [order or decree] declared that it had ceased or should cease; and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, [order or decree] declares that it had been or should be his property.
42. Relevancy and effect of judgments, orders or decrees, other than those mentioned in section 41: -
Judgments, orders or decrees other than those mentioned in section 41, are relevant if they relate to matters of a public nature relevant to the enquiry; but such judgments, orders or decrees are not conclusive proof of that which they state.CRLMC No. 1709 of 2022 Page 19 of 26
//20// Illustration:
A sues B for trespass on his land. B alleges the existence of a public right of way over the land, which A denies. The existence of a decree in favour of the defendant, in a suit by A against C for a trespass on the same land in which C alleged the existence of the same right of way, is relevant, but it is not conclusive proof that the right of way exists.
43. Judgments, etc., other than those mentioned in sections 40 to 42, when relevant. -
Judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provisions of this Act.
Illustrations
(a) A and B separately sue C for a libel which reflects upon each of them. C in each case says, that the matter alleged to be libellous is true, and the circumstances are such that it is probably true in each case, or in neither.
A obtains a decree against C for damages on the ground that C failed to make out his justification. The fact is irrelevant as between B and C.
(b) A prosecutes B for adultery with C, A's wife. B denies that C is A's wife, but the Court convicts B of adultery. Afterwards, C is prosecuted for bigamy in marrying B during A's lifetime. C says that she never was A's wife. The judgment against B is irrelevant as against C. CRLMC No. 1709 of 2022 Page 20 of 26 //21//
(c) A prosecutes B for stealing a cow from him, B, is convicted. A afterwards sues C for the cow, which B had sold to him before his conviction. As between A and C, the judgment against B is irrelevant.
(d) A had obtained a decree for the possession of land against B, C, B's son, murders A in consequence.
The existence of the judgment is relevant, as showing motive for a crime.
(e) A is charged with theft and with having been previously convicted of theft. The previous conviction is relevant as a fact in issue.
(f) A is tried for the murder of B. The fact that B prosecuted A for libel and that A was convicted and sentenced is relevant under section 8 as showing the motive for the fact in issue.
33. Sections 34 to 37 of the Bharata Sakshya Adhiniyam, 2023, correspond to Sections 40 to 43 of the Indian Evidence Act, 1872, with some modifications. Section 41, as is clear from the extraction hereinabove, specifically deals with instances where an earlier judgment, order or decree constitutes conclusive proof whereas Section 42 provides that an earlier judgment is relevant if it relates to matters of public nature relevant to the inquiry, but such judgments, orders or decrees are not conclusive proof of that which they state. These provisions were considered in detail by a 3-Judge Bench of this Court in K.G. Premshankar vs. Inspector of Police and another(2002) 8 SCC 87 23, in the context of when a judgment in a civil proceeding, on the same cause of action, would be relevant in a criminal case, and it was observed thus:
CRLMC No. 1709 of 2022 Page 21 of 26
//22// "30. What emerges from the aforesaid discussion is - (1) the previous judgment which is final can be relied upon as provided under Sections 40 to 43 of the Evidence Act;
(2)..; (3)..; (4) if the criminal case and the civil proceedings are for the same cause, judgment of the civil court would be relevant if conditions of any of Sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in Section
41. Section 41 provides which judgment would be conclusive proof of what is stated therein.
31. Further, the judgment, order or decree passed in previous civil proceeding, if relevant, as provided under Sections 40 and 42 or other provisions of the Evidence Act then in each case, the court has to decide to what extent it is binding or conclusive with regard to the matter(s) decided therein. ... Hence, in each and every case, the first question which would require consideration is - whether judgment, order or decree is relevant, if relevant - its effect. It may be relevant for a limited purpose, such as, motive or as a fact in issue. This would depend upon the facts of each case."
Decisions of this Court manifest that judgments passed on merits in civil proceedings have been accepted as sufficient cause to discharge or acquit a person facing prosecution on the same grounds. This dictum is applied especially in cases where civil adjudication proceedings, like in tax cases, lead to initiation of prosecution by the authorities. Such cases are, however, different as there is a direct connect between the civil proceedings and the prosecution which is launched. The facts and allegations leading to the prosecution directly arise as a result of the civil proceedings. Moreover, the standard of proof in civil proceedings is a preponderance of probabilities whereas, in criminal prosecution, conviction requires proof beyond reasonable doubt. We do not think the said principle CRLMC No. 1709 of 2022 Page 22 of 26 //23// can be applied per se to proceedings for maintenance under Section 125 Cr.P.C. by relying upon a judgment passed by a Civil Court on an application for restitution of conjugal rights. Further, the two proceedings are altogether independent and are not directly or even indirectly connected, in the sense that proceedings under Section 125 Cr.P.C. do not arise from proceedings for restitution of conjugal rights.
34. Long ago, in Captain Ramesh Chander Kaushal vs. Mrs. Veena Kaushal (1978) 4 SCC 70 and others24, this Court noted that it is valid to assert that a final determination of a civil right by a Civil Court would prevail against a like decision by a Criminal Court but held that this principle would be inapplicable when it comes to maintenance granted under Section 24 of the Hindu Marriage Act, 1955, as opposed to maintenance granted under Section 125 Cr.P.C. It was noted that the latter provision was a measure of social justice specially enacted to protect women and children falling within the constitutional sweep of Article 15(3) reinforced by Article
39. (emphasis supplied ) ANALYSIS AND CONCLUSION
10. It is well settled that the provision of Section 125 Cr.PC is a measure of social justice meant to protect women and children. Its object is to prevent vagrancy and destitution and provides a speedy remedy for maintenance of a neglected or deserted wife. It is also well settled that an able bodied man is to be presumed to able to maintain his wife, unless he is able to show to the Court that for reasons beyond his control, which may be his ill health or physical or mental CRLMC No. 1709 of 2022 Page 23 of 26 //24// incapacity, he is unable to earn anything. In the present case, the petitioner has not been able to show that he is not capable of earning anything. Merely because he is looking after their son, cannot be aground to neglect his wife and not provide for her maintenance.
11. In the case of Sureshta Devi (supra), the Supreme Court has held that mutual consent to the divorce is a sine qua non for passing a decree for divorce under Section 13-B and mutual consent should continue till the divorce decree is passed. In the present case, the proceeding for divorce on mutual consent was dropped, so even accepting that the application was once filed stating that the parties were staying separately on mutual consent, whether this mutual consent has continued or not has to be proved in the proceeding under Section 125 Cr.P.C.
In the case of Rina Kumari @ Rina Devi ( supra), the Supreme Court was of the view that the judgment passed in an application for restitution of conjugal rights decision could not be used in a proceeding for maintenance. In the present case, there is not even a judgment discussing or confirming the averments in the joint petition, as the proceeding was dropped.
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12. The decisions in the case of Vitthal Hiraji Jadhav (supra), Amarendra Nath Bagui (supra) , Gurmit Kaur (supra) will not be of any help to the petitioner , in view of the decision of the Supreme Court in the case of Rina Kumari @ Rina Devi (supra).
13. The decisions in Pallavi Resources Ltd (supra) and H.M.K. Ansari (supra) regarding the principle of statutory interpretation cannot be questioned. But in the present case it has to be considered, if the petitioner has been able to prove that the parties are staying separately on mutual consent.
14. Other than the averment in the joint petition, the petitioner has not produced any material to prove that the parties are living separately on mutual consent. As discussed above, when the proceeding under Section 13 B of the Hindu Marriage Act has been dropped and the averments in the joint petition have not been accepted, in my opinion the averment cannot be accepted as an admission that the parties were continuing to live separately on mutual consent. This requirement of Section - 125 ( 4 ) of the Cr.P.C having not been proved, the submission of the Petitioner that in view of an averment in the joint petition that the parties were living separately by mutual consent is rejected.
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15. In view of the above discussion, I find no merit in this CRLMC, which is accordingly dismissed.
16. Urgent certified copy of this order be granted on proper application.
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(Savitri Ratho) Judge Orissa High Court, Cuttack Dated, the 29th April, 2026/Puspa Signature Not Verified Digitally Signed Signed by: PUSPANJALI MOHAPATRA Reason: Authentication Location: Orissa High Court Date: 10-May-2026 19:03:51 CRLMC No. 1709 of 2022 Page 26 of 26