Orissa High Court
Bijay Kumar Mallik vs Tatini Jena @ Mallik .... Opposite Party on 31 March, 2026
Author: Mruganka Sekhar Sahoo
Bench: Mruganka Sekhar Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
RPFAM No. 54 of 2026
Bijay Kumar Mallik .... Petitioner
Mr. A. Mishra, Advocate
-versus-
Tatini Jena @ Mallik .... Opposite Party
CORAM:
JUSTICE MRUGANKA SEKHAR SAHOO
ORDER
31.03.2026 (Hybrid Mode) Order No.
2. Learned counsel for petitioner is heard at length.
1. The petitioner in the petition challenges the judgment dated 9.1.2026 passed by the learned Judge, Family Court, Kendapara in Criminal Proceeding No. 269 of 2013. By the said judgment the petition filed under section 125 Cr. P.C. (since repealed and substituted by pari materia provision contained in section 144 of the BNSS, 2023) by the opposite party lady being the petitioner was allowed.
2. Learned Judge, Family Court has relied upon the evidence of the three witnesses on behalf of the petitioner, five witnesses on behalf of the opposite party-herein the petitioner, four exhibits marked at the instance of the petitioner-lady and six exhibits marked as exhibits by the petitioner who was the defendant.
Page 1 of 143. Now it is contended by the learned counsel for the petitioner that for consideration and grant of monthly maintenance under section 125 Cr.P.C. the person seeking maintenance has to be the wife. In the case at hand the marriage is disputed by the petitioner and therefore, the opposite party is not entitled for any maintenance.
4. Annexed to the writ application is the judgment of the learned J.M.F.C., Kendrapara in G.R. Case No.1149 of 2016 (Trial No. 212 of 2016) wherein the petitioner faced trial under sections 493/420/323/506 IPC. Referring to the said judgment of the learned J.M.F.C., it is submitted that conviction of the petitioner would indicate that the charges under Sections 493 & 417 of IPC were proved against the petitioner herein therefore the opposite party would not be entitled to claim maintenance u/s. 125, CrPC.
5. Section 493 IPC as contained in Indian Penal Code (since repealed and substituted by pari materia provision contained in section 81 of the BNSS, 2023) is reproduced herein :
"493. Cohabitation caused by a man decietfully inducing a belief of lawful marriage-Every man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."Page 2 of 14
6. Relevant paragraph of the judgment of the learned J.M.F.C. is quoted herein :
"On revisiting of totality evidence, materials on record and taking into consideration of rival submissions of the parties I found the prosecution has successfully proved its case against the accused for commission of offence of cheating and offence of deceit causing a woman not lawfully married to him to believe that she is lawfully married to him and to cohabit with him in that belief. No evidence is coming forward that the accused has committed hurt and offence of criminal intimidation." (sic)
7. To consider legal context of the elaborate submissions made by the learned counsel for the petitioner, this Court has to and takes note of the judgment rendered by the Hon'ble Supreme Court in Rajnesh v. Neha and another, reported in AIR 2021 SC 569 : 2020 INSC 631 : (2021) 2 SCC 324. The relevant paragraphs from the SCC Online print are reproduced herein :
"Guidelines/Directions on maintenance
13. Maintenance laws have been enacted as a measure of social justice to provide recourse to dependent wives and children for their financial support, so as to prevent them from falling into destitution and vagrancy. Article 15(3) of the Constitution of India provides that:
"15. (3) Nothing in this article shall prevent the State from making any special provision for women and children."
Article 15(3) reinforced by Article 39 of the Constitution of India, which envisages a positive role for the State in fostering change towards the Page 3 of 14 empowerment of women, led to the enactment of various legislations from time to time.
14. Krishna Iyer, J. in his judgment in Ramesh Chander Kaushal v. Veena Kaushal [Ramesh Chander Kaushal v. Veena Kaushal, (1978) 4 SCC 70 : 1978 SCC (Cri) 508] held that the object of maintenance laws is : (SCC p. 74, para 9) "9. This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause -- the cause of the derelicts."
15. The legislations which have been framed on the issue of maintenance are the Special Marriage Act, 1954 ("SMA"), Section 125 of the Criminal Procedure Code, 1973; and the Protection of Women from Domestic Violence Act, 2005 ("the DV Act") which provide a statutory remedy to women, irrespective of the religious community to which they belong, apart from the personal laws applicable to various religious communities.
xxx xxx xxx (d) Section 125 CrPC
32. Chapter IX of the Code of Criminal Procedure, 1973 provides for maintenance of wife, children and parents in a summary proceeding. Maintenance under Section 125 CrPC may be claimed by a person irrespective of the religious community to which they belong. The purpose and object of Section 125 CrPC is Page 4 of 14 to provide immediate relief to an applicant. An application under Section 125 CrPC is predicated on two conditions : (i) the husband has sufficient means; and (ii) "neglects" to maintain his wife, who is unable to maintain herself. In such a case, the husband may be directed by the Magistrate to pay such monthly sum to the wife, as deemed fit. Maintenance is awarded on the basis of the financial capacity of the husband and other relevant factors.
33. The remedy provided by Section 125 is summary in nature, and the substantive disputes with respect to dissolution of marriage can be determined by a civil court/Family Court in an appropriate proceeding, such as the Hindu Marriage Act, 1955.
34. In Bhagwan Dutt v. Kamla Devi [Bhagwan Dutt v. Kamla Devi, (1975) 2 SCC 386 : 1975 SCC (Cri) 563] the Supreme Court held that under Section 125(1) CrPC only a wife who is "unable to maintain herself" is entitled to seek maintenance. The Court held : (SCC p. 392, para 19) "19. The object of these provisions being to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. The needs and requirements of the wife for such moderate living can be fairly determined, only if her separate income, also, is taken into account together with the earnings of the husband and his commitments."
(emphasis supplied)
35. Prior to the amendment of Section 125 in 2001, there was a ceiling on the amount which could be awarded as maintenance, being Rs 500 "in the whole". In view of the rising costs of living and inflation rates, the ceiling of Rs 500 was done away with by the 2001 Amendment Act. The Statement of Objects and Reasons of the Amendment Act states Page 5 of 14 that the wife had to wait for several years before being granted maintenance. Consequently, the Amendment Act introduced an express provision for grant of "interim maintenance". The Magistrate was vested with the power to order the respondent to make a monthly allowance towards interim maintenance during the pendency of the petition. Under sub-section (2) of Section 125, the court is conferred with the discretion to award payment of maintenance either from the date of the order, or from the date of the application. Under the third proviso to the amended Section 125, the application for grant of interim maintenance must be disposed of as far as possible within sixty days from the date of service of notice on the respondent.
36. The amended Section 125 reads as under:
"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 as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:
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 Page 6 of 14 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.
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 remarried.
(2) Any such allowance for the maintenance or interim maintenance and expenses of 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 expenses of proceeding, as the case may be.
(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, Page 7 of 14 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 a 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 interim maintenance and expenses of proceeding, as the case may be, from her husband under this section if she is living in adultery, or if, without any 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)
37. In Chaturbhuj v. Sita Bai [Chaturbhuj v. Sita Bai, (2008) 2 SCC 316 : (2008) 1 SCC (Civ) 547 : (2008) 1 SCC (Cri) 356] this Court held that the object of maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy and Page 8 of 14 destitution of a deserted wife by providing her food, clothing and shelter by a speedy remedy. Section 125 CrPC is a measure of social justice especially enacted to protect women and children, and falls within the constitutional sweep of Article 15(3), reinforced by Article 39 of the Constitution.
38. Proceedings under Section 125 CrPC are summary in nature. In Bhuwan Mohan Singh v. Meena [Bhuwan Mohan Singh v. Meena, (2015) 6 SCC 353 : (2015) 3 SCC (Civ) 321 : (2015) 4 SCC (Cri) 200] this Court held that Section 125 CrPC was conceived to ameliorate the agony, anguish, financial suffering of a woman who had left her matrimonial home, so that some suitable arrangements could be made to enable her to sustain herself and the children. Since it is the sacrosanct duty of the husband to provide financial support to the wife and minor children, the husband was required to earn money even by physical labour, if he is able-bodied, and could not avoid his obligation, except on any legally permissible ground mentioned in the statute.
39. The issue whether presumption of marriage arises when parties are in a live-in relationship for a long period of time, which would give rise to a claim under Section 125 CrPC came up for consideration in Chanmuniya v. Virendra Kumar Singh Kushwaha [Chanmuniya v. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141 : (2011) 1 SCC (Civ) 53 : (2011) 2 SCC (Cri) 666. This judgment was referred to a larger Bench.] before the Supreme Court. It was held that where a man and a woman have cohabited for a long period of time, in the absence of legal necessities of a valid marriage, such a woman would be entitled to maintenance. A man should not be allowed to benefit from legal loopholes, by enjoying the advantages of a de facto marriage, without undertaking the duties and obligations of such marriage. A broad and expansive interpretation must be given to the term "wife", to include even those cases where a man and Page 9 of 14 woman have been living together as husband and wife for a reasonably long period of time. Strict proof of marriage should not be a precondition for grant of maintenance under Section 125 CrPC. The Court relied on the Malimath Committee Report on Reforms of Criminal Justice System published in 2003, which recommended that evidence regarding a man and woman living together for a reasonably long period, should be sufficient to draw the presumption of marriage.
40. The law presumes in favour of marriage, and against concubinage, when a man and woman cohabit continuously for a number of years. Unlike matrimonial proceedings where strict proof of marriage is essential, in proceedings under Section 125 CrPC such strict standard of proof is not necessary. [Kamala v. M.R. Mohan Kumar, (2019) 11 SCC 491 : (2019) 4 SCC (Civ) 732 : (2019) 4 SCC (Cri) 242] xxx xxx xxx
44. For a live-in relationship to fall within the expression "relationship in the nature of marriage", this Court in Indra Sarma v. V.K.V. Sarma [Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755 : (2014) 5 SCC (Civ) 440 : (2014) 6 SCC (Cri) 593] laid down the following guidelines : (a) duration of period of relationship; (b) shared household; (c) domestic arrangements; (d) pooling of resources and financial arrangements; (e) sexual relationship; (f) children; (g) socialisation in public; and (h) intention and conduct of the parties. The Court held that these guidelines were only indicative, and not exhaustive.
xxx xxx xxx V. Enforcement of orders of maintenance
114. Enforcement of the order of maintenance is the most challenging issue, which is encountered by the applicants. If maintenance is not paid in a timely manner, it defeats the very object of the social welfare legislation. Execution petitions usually remain pending for months, if not years, which completely Page 10 of 14 nullifies the object of the law. The Bombay High Court in Sushila Viresh Chhadva v. Viresh Nagshi Chhadva [Sushila Viresh Chhadva v. Viresh Nagshi Chhadva, 1995 SCC OnLine Bom 315 : AIR 1996 Bom 94] held that : (SCC OnLine Bom para 7)
7. ... The direction of interim alimony and expenses of litigation under Section 24 is one of urgency and it must be decided as soon as it is raised and ... the law takes care that nobody is disabled from prosecuting or defending the matrimonial case by starvation or lack of funds."
115. An application for execution of an order of maintenance can be filed under the following provisions:
(a) Section 28-A of the Hindu Marriage Act, 1955 read with Section 18 of the Family Courts Act, 1984 and Order 21 Rule 94 CPC for executing an order passed under Section 24 of the Hindu Marriage Act (before the Family Court);
(b) Section 20(6) of the DV Act (before the Judicial Magistrate); and
(c) Section 128 CrPC before the Magistrate's Court.
116. Section 18 of the Family Courts Act, 1984 provides that orders passed by the Family Court shall be executable in accordance with the CPC/CrPC.
117. Section 125(3) CrPC provides that if the party against whom the order of maintenance is passed fails to comply with the order of maintenance, the same shall be recovered in the manner as provided for fines, and the Magistrate may award sentence of imprisonment for a term which may extend to one month, or until payment, whichever is earlier.
xxx xxx xxx Discussion and Directions on Enforcement of orders of Maintenance Page 11 of 14
125. The order or decree of maintenance may be enforced like a decree of a civil court, through the provisions which are available for enforcing a money decree, including civil detention, attachment of property, etc. as provided by various provisions of the CPC, more particularly Sections 51, 55, 58, 60 read with Order 21.
126. Striking off the defence of the respondent is an order which ought to be passed in the last resort, if the courts find default to be wilful and contumacious, particularly to a dependent unemployed wife, and minor children. Contempt proceedings for wilful disobedience may be initiated before the appropriate court.
VI. Final Directions
127. In view of the foregoing discussion as contained in Part B -- I to V of this judgment, we deem it appropriate to pass the following directions in exercise of our powers under Article 142 of the Constitution of India.
xxx xxx xxx
134. A copy of this judgment be communicated by the Secretary General of this Court, to the Registrars of all High Courts, who would in turn circulate it to all the District Courts in the States. It shall be displayed on the website of all District Courts/Family Courts/Courts of Judicial Magistrates for awareness and implementation."
8. In view of the authoritative pronouncement by the apex Court in Rajnesh v. Neha (supra) that amount awarded as maintenance is akin to money decree, though the learned counsel for the petitioner seriously disputes that it cannot be money decree. The paragraphs quoted from the judgment of the Rajnesh v. Neha (supra) indicate that the award can be enforced Page 12 of 14 and any challenge thereto in revision would necessarily require securing the amount before this Court.
9. It is submitted by learned counsel for the petitioner that appeal against the judgment dated 8.12.2016 rendered by the learned J.M.F.C. in the G.R. Case is pending but nobody knows what would happen to the judgment. The submission that nobody knows that what would happen in the appeal and consequently what would happen to the judgment of learned J.M.F.C. is correct, but this Court cannot proceed on the presumption that appeal would be allowed in favour of the appellant before the learned Addl. Sessions Judge, Kendrapara.
10. Though the learned counsel for the petitioner repeatedly insists for issuance of notice to O.P. by this Court, but in considered opinion of this Court without being satisfied prima facie that case has been made out for revision by applying the law settled by Hon'ble Supreme Court in Shamima Farooqui v. Shahid Khan : (2015) SCC 705 (paragraphs 20 & 21 of SCC), issuance of notice in a matter where maintenance has been awarded by the judgment of the learned Judge, Family Court under section 125 CrPC, would not be in the interest of justice.
11. It has also to be noted that though the petitioner has chosen to file before this Court copy of the judgment by the learned J.M.F.C. in G.R. Case No.1149 of 2016 (Trial No. 212 of 2016), marked as Annexure-1 to the petition, the said judgment has not been relied on by the Page 13 of 14 learned trial court while dealing with the petition filed by the lady under section 125 CrPC.
12. Learned counsel for the petitioner seeks and has adjournment to obtain further instruction from the petitioner. The petitioner shall file affidavit, if so advised, indicating how he will secure the amount directed to be paid which remains due. The amount due since 30.6.2010 till March, 2026 for the 189 months comes to ₹2,500 x 189= ₹4,72,500, (Rupees four lakh seventy-two thousand five hundred only).
13. The matter shall be listed for "Fresh Admission" in the week commencing 27.4.2026.
(Mruganka Sekhar Sahoo) Judge dutta Signature Not Verified Digitally Signed Signed by: AJIT KUMAR DUTTA Reason: Authentication Location: ohc Date: 10-Apr-2026 18:19:14 Page 14 of 14