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 P.C. (since repealed and substituted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 14
3. 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Code (since repealed and substituted by pari materia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
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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
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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
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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
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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,
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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
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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
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