Orissa High Court
Pratima Das And Others vs Rabindranath Das on 30 June, 2026
Author: Mruganka Sekhar Sahoo
Bench: Mruganka Sekhar Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
RPFAM No.364 of 2025
An application under Section 19 of the Family Courts Act.
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Pratima Das and others ... ... Petitioners
-Versus-
Rabindranath Das ... ... Opp. Party
Advocates appeared in the case:
For Petitioners : Mr. Suryakanta Dash,
Advocate
For Opp. Party : Mr. P.K. Ray, Advocate
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CORAM:
THE HON'BLE MR. JUSTICE MRUGANKA SEKHAR SAHOO
JUDGMENT
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Decided on 30th June, 2026
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MRUGANKA SEKHAR SAHOO, J.
1. The RPFAM has been filed by the wife in the marriage
and the two unmarried daughters born from wedlock,
challenging the order dated 13.05.2025 passed by the
learned Judge, Family Court, Berhampur at Ganjam in
Cr. P. No.108 of 2023.
RPFAM No.364 of 2025 Page 1 of 20
1.1 The said application under Section 127 of Cr.P.C.
(since repealed and substituted by pari materia provision
contained in Section 146 of BNSS) was filed by the present
opposite party being the petitioner; his wife in the marriage
and his two unmarried daughters being the opposite
parties.
1.2 The operative portion of the impugned order dated
13.05.2025 is reproduced herein:
“The petition u/s.l27 of Cr.P.C. filed by the petitioner
is allowed, in part, on contest against the O.Ps, but in
the circumstances without any cost. The petitioner is
directed to provide Rs.8,000/- (Eight Thousands) per
month to the O.P. no. 1-wife and Rs.4,000/- (Four
Thousands) per month to the O.P. no.3-daughter
towards their maintenance allowance.
The O.P. no.3 will receive the maintenance amount till
the date she turns major. This modification will be
applicable to the maintenance amount that is payable
from date 01.02.2022, i.e. after the date of
superannuation of the petitioner on date 31.01.2022.
The O.P. No.2 will receive the maintenance amount at
the enhanced rate as passed in Cr.P. No.84/2019 till
she was a minor. The maintenance amount paid
earlier, if any, will be adjusted from the amount due
as per the present modification. In case of default by
the petitioner, the O.Ps are at liberty to levy execution
through due process of law.”
2. By filing the application under Section 127 Cr.P.C., the
opposite party had sought for modification of the order
dated 01.02.2022 passed in Cr. P. No.84 of 2019, whereby,
the monthly maintenance amount @ Rs.13,500/- was
RPFAM No.364 of 2025 Page 2 of 20
enhanced to Rs.27,000/-. The arrear maintenance
amounting to Rs.3,24,000/- from 01.05.2022 to 30.04.2023
was also directed to be realized. In the application under
Section 127 of Cr.P.C., the prayer was for reduction of the
amount of monthly maintenance directed by order dated
01.02.2022.
3. In the application filed before the learned Court under
Section 127 Cr.P.C. i.e. Cr.P. No.108 of 2023 (at paragraph-
6 page-13) of the petition, the following has been stated by
the present Opposite Party.
“6. By that time, the Petitioner was continuing in his
service at Provident Fund Organization, Keonjhar &
was getting Gross Amount of Salary to the tune of Rs.
94,098/- (Rupees Ninety Four Thousands Ninety
Eight) only per month. In the mean while, w.e.f.
31.01.2022, A.N. he has retired from service. Now, he
is getting basic monthly retirement pension to the tune
of Rs. 32,050/- (Rupees Thirty Two Thousands Fifty)
only per month with temporary increase of DR from
time to time as admissible. The Opposite Party is
entitled to receive Rs.19,230/- only after deduction of
installment of commutation of pension in every month.
Documents are annexed for kind perusal of the
Hon’ble Court.”
4. On perusal of the judgment passed by the learned
Judge, Family Court, Berhampur under Section 127 Cr.P.C.
in Cr. P. No.108 of 2023, reducing the maintenance
amount, it is seen the apparent reasons have been given at
paragraphs 6 to 9 which are reproduced herein:
RPFAM No.364 of 2025 Page 3 of 20
“6. Section 127 Cr. P.C. deals with alternation in the
maintenance allowance or cancellation of order
awarding maintenance which has been passed
u/s.l25 of the Cr.P.C.. This Section recognizes the
ground of “change in circumstances” as the sole
ground for alternation of the maintenance amount. The
term change in circumstances envisages a change of
pecuniary or circumstance of the party paying or
receiving allowance which would justify the increase
or decrease in the amount of maintenance originally
fixed.
However, Section 127 does enable a party to raise
new contentions to defeat the findings already
rendered in a proceeding u/s.l25 Cr. P.C.. The scope of
inquiry under this Section does also entitle a party to
re-agitate certain claims or contentions which have
already become final.
7. In the present case, admittedly the O.Ps initiated
maintenance proceeding against the petitioner and
time and again they have obtained enhancement in
the quantum of maintenance. The last enhancement of
the monthly maintenance was made vide Cr. P.
No.84/2019. It is also admitted that the O.Ps have
prayed for realization of the arrear maintenance
amount for the period 01.05.2022 to 30.04.2023. It is
further admitted that the petitioner was working at
Provident Fund Organization, Keonjhar and was
drawing gross salary of Rs.94,098/- (Ninety-Four
Thousands and Ninety Eight). Further, the petitioner
got retired from his job after his superannuation on
31.01.2022. In view of the attending facts and
circumstances of the present case, it is crystal clear
that the maintenance amount was fixed while the
petitioner was in his service. After his superannuation
on 31.01.2022 there is a complete change in his
earning. The retirement of the petitioner can very well
be taken as a changing circumstance, substantialRPFAM No.364 of 2025 Page 4 of 20
enough to necessitate modification in the quantum of
maintenance amount being paid by him.
8. So far as the extent of modification is concerned,
relief is sought by the petitioner mostly on two
grounds. First and foremost is the change in his
earning after his retirement and second, the fact of the
status of the O.P. nos.2 & 3 after they attain their
majority. As revealed by the petitioner, the date of
birth of O.P. no.2 is 01.04.1997, while the date of birth
of O.P. no.3 is 03.06.2004. So, much prior to the date
of his superannuation, the O.P. no.2 has attained her
attained her majority, while the O.P. no.3 attained her
majority by date 03.06.2022.
Under Section.125 Cr.P.C. the maintenance of the
children is obligatory on the father as long as he is in
a position to do so and the children have no
independent means of their own till they have minors.
Children, who have already turned major, can only be
allowed maintenance provided they are unable to
maintain themselves due to physical or mental
abnormality or injury. However, simply being
unmarried and unable to maintain oneself is not
sufficient to claim maintenance u/s.l25 Cr.P.C.
The learned Counsel for the O.Ps while
advancing his argument in support of the claim of the
O.P. nos.2 & 3 has relied upon the observation Hon’ble
Apex Court in the case of Abhilasha V. Prakash AIR
2020 SC 4355 and contended that an unmarried
Hindu daughter can claim maintenance from her
father till she is married, provided she pleads and
proves that she is unable to maintain herself. Having
utmost regard to the judgment relied upon and the
ratio propounded therein, the same is found not
befitting in the backdrop of the peculiar facts and
circumstances of the present case. The case relied
upon relates to a proceeding under Hindu Adoption
and Maintenance Act, 1956. The factual matrix
depicted therein are quite distinguishable from theRPFAM No.364 of 2025 Page 5 of 20
facts and circumstances of the present case and hence
the same does not hold any relevance, as far as the
present case is concerned.
The present proceeding before this Court arises
out of the maintenance proceeding filed u/s.l25 of
Cr.P.C.. The enabling Provision of Section. 125 of
Cr.P.C. clearly recognizes the right of maintenance of
children till they are minors. As in the present case,
the O.P. nos.2 & 3 have already attained their
majority, they would be allowed with maintenance till
they are minors in age, in absence of any pleading or
evidence that they suffer from any sort of physical or
mental disability. Accordingly, the maintenance order
allowed in favour of the O.P. nos.2 & 3 is modified to
the extent that they will receive the maintenance
amount till they are minors.
9. So far as the modification in respect of quantum
of maintenance is concerned, as revealed by the
petitioner he was allowed with monthly basic pension
to the tune of Rs.32,050/- (Thirty-Two Thousands and
Fifty) with temporary increases of D.R. from time to
time as admission. Further, after deduction of
installments of commutation of pension in every month
he is receiving Rs.19,230/- (Nineteen Thousands Two
Hundred and Thirty) as his pension per month. In
support of his contention he has filed the copy of
Pension Order. On the other hand, the O.P. no.l stood
the specific plea that the petitioner is getting gross of
Rs.37,225/- (Thirty-Seven Thousands Two hundred
and Twenty-Five). No such documents are filed by the
O.P. no.l in support of her claim. Keeping in view the
disclosure made by the petitioner supported with the
pension order it is clear that he was allowed monthly
pension of Rs.32,050/- (Thirty-Two Thousands and
Fifty) plus D.R. w.e.f. 01.02.2022. The commutation
portion of the pension amount is Rs. 12,820/- (Twelve
Thousands Eight Hundred and Twenty) and hisRPFAM No.364 of 2025 Page 6 of 20
pension after commutation is Rs. 19,230/- (Nineteen
Thousands Two Hundred and Thirty) plus D.R.”
5. It is submitted by the learned counsel, Mr. Das for the
petitioners that unmarried daughters are entitled for
maintenance. He relies on the decision rendered by the
larger Bench of Hon’ble the Apex Court in Abhilasha v.
Prakash and others1, wherein scope of S. 125 Cr.P.C.,
1973 (since repealed and substituted by pari materia
provision being Section 144 of Bharatiya Nagarik Suraksha
Sanhita, 2023) was considered.
Relying on the decision of the Abhilasha (supra), it is
submitted that the learned Family Court has failed into
patent error in observing that the daughter after attaining
majority shall stop to receive maintenance granted earlier
U/S. 125 Cr.P.C.
Learned counsel further relies on the decision of a
Coordinate Bench of this Court in G. Debendra Rao v. G.
Puspa Prabha Rao and another2 to support his
submission.
6. Learned counsel for the opposite party made his
submissions supporting the judgment passed by the learned
Judge, Family Court.
Learned counsel relies on decision of the Hon’ble Apex
Court rendered in Abhilasha (supra) to support the
1
(2021) 13 SCC 99
2
2025 (III) ILR-CUT-719
RPFAM No.364 of 2025 Page 7 of 20
conclusion of the learned Family Judge that as the petition
before the learned Judge, Family Court was filed initially
under Section 125, Cr.P.C., thereafter, under Section 127,
Cr.P.C., maintenance to unmarried daughters above 18
years of age has to stop.
It is submitted maintenance that can be granted under
Sections 18 and 20 of Hindu Adoptions and Maintenance
Act (HAMA), 1956 cannot be considered and granted to the
two daughters (petitioner nos.2 and 3) till their marriage in
an application under Sections 125/127 of Cr. P.C.
7. Incidentally, the learned JFC has also relied on
Abhilasha (supra) and read the judgment to support it’s
conclusions.
8. It is submitted by the learned counsel for the opposite
party that as directed at paragraph 8 of the order dated
28.01.2026 of this Court, the opposite party has filed
affidavit 25.02.2026. In paragraph 8 of the order dated
28.01.2026, the following was directed:
“8. The opposite party is directed to file affidavit by
26.02.2026 indicating the complete details of the
retiral dues he has received post his retirement with
supporting documents. The affidavit will indicate the
amount of provident fund the amount of other retiral
benefits and also indicate the commuted value of
pension he has received which he has to repay by
monthly deduction.”
RPFAM No.364 of 2025 Page 8 of 20
9. At paragraph 5 of the affidavit filed by opposite party
dated 25.02.2026, copy of which has been served on the
learned counsel for the petitioners, it has been stated that
the opposite party has received Rs.14,17,251/- +
Rs.12,60,565/-+ Rs.7,41,551/-=Rs.34,19,367/- towards
commuted value of pension, leave encashment.
Apparently, the receipt of the Rs.12,60,565/- towards
commuted value of pension was at the option of the
opposite party. The amount of money around Rupees 34
lakhs 20 thousand, received by the opposite party has at a
time post retirement not been taken note of by the learned
trial court when the learned trial court has reduced the
amount of pension apparently being carried away by the
submission that ‘the income has been reduced’.
10. Conspicuously, the opposite party while seeking
modification of the maintenance amount has not disclosed
as to what is the amount of retiral benefits and the
commuted value of pension he has availed and received.
Clearly the entire amount of commuted value of pension has
gone into his hands and for which he has to make a
corresponding deduction from the pension amount which is
in the form of a monthly installment for repayment of the
commuted value of pension taken in advance.
Further, the details of calculation of the ‘total pension’
amount of Rs.32,050/-is also not disclosed in the petition.
However, the amount of salary was Rs.94,098/-, the
RPFAM No.364 of 2025 Page 9 of 20
opposite party was receiving, when the order under Section
125 Cr.P.C./Section 125 (3) Cr.P.C. were passed.
11. On being asked the learned counsel for the opposite
party submits that he is not sure whether the opposite party
had apprised the learned trial court regarding the opposite
party receiving more than Rs.34 lakhs towards retiral dues
including commuted value of pension Rs.12,60,565/-.
The reasoning given by the learned trial court for the
conclusion it arrived (at paragraph 7 of the judgment) has
been reproduced and analysed above for present
adjudication.
12. As a matter of coincidence the Hon’ble Apex Court
dealt with similar situation/facts when the husband
seeking reduction of monthly maintenance had opted to
take Voluntary Retirement (VRS) and in words of the
Hon’ble Apex Court “perhaps to avoid payment of
maintenance” in Shamima Farooqui v. Shahid Khan3.
The paragraphs from Shamima Farooqui (supra) apt to be
referred to in the context of present adjudication are
reproduced herein:
“1. Leave granted. When centuries old obstructions are
removed, age-old shackles are either burnt or lose
their force, the chains get rusted, and the human
endowments and virtues are not indifferently treated
and emphasis is laid on “free identity” and not on
“annexed identity”, and the women of today can
gracefully and boldly assert their legal rights and3 (2015) 5 SCC 705
RPFAM No.364 of 2025 Page 10 of 20
refuse to be tied down to the obscurant conservatism,
and further determined to ostracise the “principle of
commodity”, and the “barter system” to devoutly
engage themselves in learning, criticising and
professing certain principles with committed sensibility
and participating in all pertinent and concerned
issues, there is no warrant or justification or need to
pave the innovative multi-avenues which the law does
not countenance or give its stamp of approval.
Chivalry, a perverse sense of human egotism, and
clutching of feudal megalomaniacal ideas or for that
matter, any kind of condescending attitude have no
room. They are bound to be sent to the ancient woods,
and in the new horizon people should proclaim their
own ideas and authority. They should be able to say
that they are the persons of the modern age and they
have the ideas of today’s “Bharat”. Any other idea
floated or any song sung in the invocation of male
chauvinism is the proposition of an alien, a total
stranger–an outsider. That is the truth in essentiality.
xxx xxx xxx xxx
6. The aforesaid order passed by the learned Family
Judge came to be assailed before the High Court in
criminal revision wherein, the High Court after
adumbrating the facts referred to the decisions
in Anita Rani v. Rakeshpal Singh1 , Dharmendra
Kumar Gupta v. Chandra Prabha Devi 2, Rakesh
Kumar Dikshit v. Jayanti Devi3, Ashutosh
Tripathi v. State of U.P. , Paras Nath Kurmi v. Sessions
4Judge, Mau 5 and Sartaj v. State of U.P. 6 and came to
hold7 that though the learned Principal Judge, Family
Court had not ascribed any reason for grant of
maintenance from the date of the application, yet
when the case for maintenance was filed in the year
1998 decided on 17-2-2012 and there was no order
for interim maintenance, the grant of Rs 2500 as
monthly maintenance from the date of application was
neither illegal nor excessive. The High Court took noteRPFAM No.364 of 2025 Page 11 of 20
of the fact that the husband had retired on 1-4-2012
and consequently reduced the maintenance allowance
to Rs 2000 from 1-4-2012 till remarriage of the
appellant herein. Being of this view the learned Single
Judge modified the order passed by the Family Court.
Hence, the present appeal by special leave, at the
instance of the wife.
xxx xxx xxx xxx
14. Coming to the reduction of quantum by the High
Court, it is noticed that the High Court has shown
immense sympathy to the husband by reducing the
amount after his retirement. It has come on record that
the husband was getting a monthly salary of Rs
17,654. The High Court, without indicating any
reason, has reduced the monthly maintenance
allowance to Rs 2000. In today’s world, it is extremely
difficult to conceive that a woman of her status would
be in a position to manage within Rs 2000 per month.
It can never be forgotten that the inherent and
fundamental principle behind Section 125 CrPC is for
amelioration of the financial state of affairs as well as
mental agony and anguish that a woman suffers
when she is compelled to leave her matrimonial home.
The statute commands that there have to be some
acceptable arrangements so that she can sustain
herself. The principle of sustenance gets more
heightened when the children are with her. Be it
clarified that sustenance does not mean and can never
allow to mean a mere survival. A woman, who is
constrained to leave the marital home, should not be
allowed to feel that she has fallen from grace and
move hither and thither arranging for sustenance. As
per law, she is entitled to lead a life in the similar
manner as she would have lived in the house of her
husband. And that is where the status and strata of
the husband comes into play and that is where the
legal obligation of the husband becomes a prominent
one. As long as the wife is held entitled to grant ofRPFAM No.364 of 2025 Page 12 of 20
maintenance within the parameters of Section 125
CrPC, it has to be adequate so that she can live with
dignity as she would have lived in her matrimonial
home. She cannot be compelled to become a destitute
or a beggar. There can be no shadow of doubt that an
order under Section 125 CrPC can be passed if a
person despite having sufficient means neglects or
refuses to maintain the wife. Sometimes, a plea is
advanced by the husband that he does not have the
means to pay, for he does not have a job or his
business is not doing well. These are only bald
excuses and, in fact, they have no acceptability in law.
If the husband is healthy, able-bodied and is in a
position to support himself, he is under the legal
obligation to support his wife, for wife’s right to receive
maintenance under Section 125 CrPC, unless
disqualified, is an absolute right.
15. While determining the quantum of maintenance,
this Court in Jasbir Kaur Sehgal v. District Judge,
Dehradun [(1997) 7 SCC 7] has held as follows : (SCC
p. 12, para 8)
“8. … The court has to consider the status of the
parties, their respective needs, the capacity of
the husband to pay having regard to his
reasonable expenses for his own maintenance
and of those he is obliged under the law and
statutory but involuntary payments or
deductions. The amount of maintenance fixed
for the wife should be such as she can live in
reasonable comfort considering her status and
the mode of life she was used to when she lived
with her husband and also that she does not
feel handicapped in the prosecution of her case.
At the same time, the amount so fixed cannot be
excessive or extortionate.”
16. Grant of maintenance to wife has been perceived
as a measure of social justice by this Court.
In Chaturbhuj v. Sita Bai [(2008) 2 SCC 316 : (2008)
RPFAM No.364 of 2025 Page 13 of 20
1 SCC (Civ) 547 : (2008) 1 SCC (Cri) 356] , it has been
ruled that : (SCC p. 320, para 6)
“6. … 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 Capt. Ramesh Chander Kaushal v. Veena
Kaushal [(1978) 4 SCC 70 : 1978 SCC (Cri) 508]
falls within the 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 [(2005) 3 SCC 636 :
2005 SCC (Cri) 787] .”
17. This being the position in law, it is the obligation of
the husband to maintain his wife. He cannot be
permitted to plead that he is unable to maintain the
wife due to financial constraints as long as he is
capable of earning.
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 [1968 SCC OnLine Del 52 : AIR 1968 Del 174]
wherein it has been opined thus : (SCC OnLine Del
para 7)
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
RPFAM No.364 of 2025 Page 14 of 20
show to the Court cogent grounds for holding
that he is unable, for reasons beyond his
control, to earn enough 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.
20. In the instant case, as is seen, the High Court has
reduced the amount of maintenance from Rs 4000 to
Rs 2000. As is manifest, the High Court has become
oblivious of the fact that she has to stay on her own.
Needless to say, the order of the learned Family Judge
is not manifestly perverse. There is nothing perceptible
which would show that order is a sanctuary of errors.
In fact, when the order is based on proper appreciation
of evidence on record, no Revisional Court should have
interfered with the reason on the base that it would
have arrived at a different or another conclusion.
When substantial justice has been done, there was no
reason to interfere. There may be a shelter over her
head in the parental house, but other real expenses
cannot be ignored. Solely because the husband had
retired, there was no justification to reduce the
RPFAM No.364 of 2025 Page 15 of 20
maintenance by 50%. It is not a huge fortune that was
showered on the wife that it deserved reduction. It
only reflects the non-application of mind and,
therefore, we are unable to sustain the said order.
21. Having stated the principle, we would have
proceeded to record our consequential conclusion. But,
a significant one, we cannot be oblivious of the
asseverations made by the appellant. It has been
asserted that the respondent had taken voluntary
retirement after the judgment dated 17-2-2012 with
the purpose of escaping the liability to pay the
maintenance amount as directed to the petitioner; that
the last-drawn salary of the respondent taken into
account by the learned Family Judge was Rs 17,564
as per salary slip of May 2009 and after deduction of
AFPP Fund and AGI, the salary of the respondent was
Rs 12,564 and hence, even on the basis of the last
basic pay (i.e. Rs 9830) of the respondent the total
pension would come to Rs 14,611 and if 40% of
commutation is taken into account then the pension of
the respondent amounts to Rs 11,535; and that the
respondent, in addition to his pension, had received
encashment of commutation to the extent of 40% i.e.
Rs 3,84,500 and other retiral dues i.e. AFPP, AFGI,
gratuity and leave encashment to the tune of Rs
16,01,455. The aforesaid aspects have gone
uncontroverted as the respondent husband has not
appeared and contested the matter. Therefore, we are
disposed to accept the assertions. This exposition of
facts further impels us to set aside the order of the
High Court.”
[Underlined to supply emphasis]
13. In considered view of this Court, the learned trial
court has committed error apparent in not noticing the fact
that the petitioner seeking reduction of maintenance before
RPFAM No.364 of 2025 Page 16 of 20
it had opted to avail commuted value of pension of
Rs.12,60,565/- and was to repay the same by deducting
equal monthly installments from his pension at his own
volition and has received a further amount of Rs.22 lakhs
at a time towards retiral benefits. It is not the case that the
opposite party had shared any amount with his wife and
the two unmarried daughters.
14. The learned trial court has recorded that after his
superannuation on 31.01.2022 “there is a complete change
in his earning”. Such sweeping observation by the learned
court is bereft of any material particulars. The court has
not gone into the details as discussed above which was
within the knowledge of the opposite party perhaps not
disclosed before the learned trial court with an objective to
persuade it to reduce the maintenance amount.
14.1 The opposite party had deposed before the learned
court as P.W.1 in the application under Section 127 of
Cr.P.C.
The opposite party had failed to disclose in his
pleadings and depositions that he had received about
Rs.34 lakhs at the time of his superannuation out of which
he did not give any share to the wife or two unmarried
daughters.
15. The reading and interpretation of the learned Judge,
Family Court of the judgment of Hon’ble Apex Court in
Abhilasha (supra) is erroneous. Apparently, the learned
RPFAM No.364 of 2025 Page 17 of 20
Judge, Family Court has not noticed, paragraphs-33, 34
and 35 (of SCC print), the said paragraphs are reproduced
herein:
“33. After enactment of the Family Courts Act, 1984, a
Family Court shall also have the jurisdiction
exercisable by a Magistrate of the First Class under
Chapter IX CrPC relating to order for maintenance of
wife, children and parents. Family Courts shall have
the jurisdiction only with respect to city or town whose
population exceeds one million, where there is no
Family Court, proceedings under Section 125CrPC
shall have to be before the Magistrate of the First
Class. In an area where the Family Court is not
established, a suit or proceedings for maintenance
including the proceedings under Section 20 of the
1956 Act shall only be before the District Court or any
subordinate civil court.
34. There may be a case where the Family Court has
jurisdiction to decide a case under Section 125CrPC as
well as the suit under Section 20 of the 1956 Act, in
such eventuality, the Family Court can exercise
jurisdiction under both the Acts and in an appropriate
case can grant maintenance to unmarried daughter
even though she has become major enforcing her right
under Section 20 of the 1956 Act so as to avoid
multiplicity of proceedings as observed by this Court
in Jagdish Jugtawat [Jagdish Jugtawat v. Manju Lata,
(2002) 5 SCC 422 : 2002 SCC (Cri) 1147] . However
the Magistrate in exercise of powers under Section 125
CrPC cannot pass such order.
35. In the case before us, the application was filed
under Section 125CrPC before the Judicial Magistrate
First Class, Rewari who passed the order dated
6-2-2011. The Magistrate while deciding proceedings
under Section 125CrPC could not have exercised the
jurisdiction under Section 20(3) of the 1956 Act and
the submission of the appellant cannot be accepted
RPFAM No.364 of 2025 Page 18 of 20
that the court below should have allowed the
application for maintenance even though she has
become major. We do not find any infirmity in the
order of the Judicial Magistrate First Class as well as
the learned Additional Magistrate in not granting
maintenance to the appellant who had become major.”
16. In the present case, the learned Judge, Family Court
had jurisdiction to decide the matters which would be filed
under Sections 18 and/or 20 of Hindu Adoptions and
Maintenance Act, 1956. After enactment of the Family
Court’s Act, 1984 the learned Judge, Family Court has the
jurisdiction exercisable by a Magistrate of the First Class
under Chapter-IX of Cr.P.C. relating to order for
maintenance of wife. The judgment in Abhilasha (supra)
considered whether the learned Magistrate can take up
petition U/S. 20 of HAMA, 1956 but in the case at hand
the learned Family Judge was in seisin of the matter.
17. The Hon’ble Supreme Court in Rajnesh v. Neha and
another4 have dealt with the issue of conflicting judgments
on ‘overlapping jurisdiction’ and have issued directions on
‘overlapping jurisdiction’ which has the effect: that all the
applications seeking maintenance by wife and children
under Special Marriage Act, 1954, Hindu Marriage Act,
1955, Hindu Adoptions and Maintenance Act, 1956,
Protection of Women from Domestic Violence Act, 2005 and
Section 125, Cr.P.C. (since repealed and substituted by
4
(2021) 2 SCC 324
RPFAM No.364 of 2025 Page 19 of 20
pari materia provisions contained in Section 144 of
Bharatiya Nagarik Suraksha Sanhita, 2023) are to be dealt
with either together or individually by the learned Family
Court.
18. The interpretation by which the learned Judge, Family
Court has gone to observe that it cannot consider the
maintenance that can be granted under Sections 18
and/or 20 of Hindu Adoptions and Maintenance Act, 1956
as the petition was filed under Section 125, Cr.P.C. would
run contrary to the law laid down in Rajnesh (supra) and
also run contrary to law enunciated at paragraphs, 33, 34
and 35 of Abhilasha (supra).
19. In view of the above discussions, it has to be and is
held that the learned Family Court has erred in altering its
earlier order dated 18.02.2020 in Cr. P. No.84 of 2019 by
exercising jurisdiction under Section 127 of the Cr.P.C., as
it has failed to take the relevant materials into
consideration; and has applied incorrect propositions of
law.
20. The judgment dated 13.05.2025 passed by the learned
Family Court, Berhampur, Ganjam in Criminal Proceeding
No.108 of 2023 is set aside and quashed.
As a result, the earlier order dated 18.02.2020 passed
by the learned Family Court enhancing the amount of
maintenance in Cr.P. No.84 of 2019, is restored.
RPFAM No.364 of 2025 Page 20 of 20
The consequences shall follow; the arrears, if any,
towards payment of monthly maintenance as directed by
order dated 18.02.2020 in Cr.P. No.84 of 2019 under
Section 125 of Cr.P.C. shall be paid in 10 equal monthly
installments starting from August, 2026 on/before 15th of
every month.
21. The revision petition is allowed and disposed of with
the above observations.
(Mruganka Sekhar Sahoo)
Judge
Orissa High Court, Cuttack
The 30th June, 2026/Jyostna
Signature Not Verified
Digitally Signed
Signed by: JYOSTNARANI MAJHEE
Reason: Authentication
Location: OHC RPFAM No.364 of 2025 Page 21 of 20
Date: 24-Jul-2026 18:36:56
