Orissa High Court
(An Application U/S. 401 Crpc Read With … vs Rajani Pattanaik @ Patra & … Opposite … on 4 March, 2025
Author: G. Satapathy
Bench: G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
RPFAM NO.425 of 2023
(An application U/S. 401 CrPC read with Section 19(4)
of the Family Courts Act).
Ashok Kumar Patra ... Petitioner
Mr. B.Mishra, Advocate
-versus-
Rajani Pattanaik @ Patra & ... Opposite Parties
others
Mr. B.B.Singh, Advocate
CORAM:
JUSTICE G. SATAPATHY
F DATE OF HEARING :18.12.2024
DATE OF JUDGMENT: 04.03.2025
G. Satapathy, J.
1. This revision by the petitioner-husband is
directed against the impugned judgment dated
06.10.2023 passed by the learned Judge Family Court,
Jeypore in Criminal Proceeding No. 44 of 2022
directing the petitioner-husband to pay a sum of
Rs.5,000/- to OP No.1-cum-wife and Rs.2,000/- each
to OP Nos. 2 & 3-cum-minor sons as monthly
maintenance w.e.f. 18.04.2022 with further stipulation
to pay the arrear maintenance within three months
from the date of passing of the impugned order.
RPFAM No.425 of 2023 Page 1 of 13
2. The undisputed facts as found from the record
are that the petitioner and OP No.1 are husband and
wife and their marriage was solemnized on 19.06.2006
and they are being blessed with two sons-cum-OP
Nos. 2 & 3. The petitioner was earlier working as a
Constable in BSF, but in the year 2013, he took
voluntary retirement from his job and the petitioner
and OP remained at Damanjodi where the present
petitioner joined in the HAL as a security in-charge,
but in the year 2020, the petitioner was suspended
from the job due to his negligence and the petitioner
then joined as a security guard at FCI, Jeypore,
however, the petitioner later on joined at HAL,
Sunabeda as security in-charge. On the other hand,
the OP No.1-cum-wife is a house wife and the two
minor children are completely dependent. Due to
dissension, the petitioner and OP started living
separately, however, the petitioner-husband issued
notice through lawyer for restitution of conjugal rights,
but the OP-wife never voluntarily deserted the
petitioner.
RPFAM No.425 of 2023 Page 2 of 13
3. On the aforesaid backdrop and claiming
herself to be purely dependent house wife, OP No.1
has approached the learned Judge Family Court,
Jeypore against the petitioner-husband for grant of
maintenance to her and their minor children in an
application U/S. 125 of CrPC which came to be
registered as Criminal Proceeding No. 44 of 2022. In
the aforesaid proceeding as moved by the OP-wife, the
petitioner-husband appeared and filed his objection
denying all the allegation made against him and inter
alia coming with a plea of desertion by wife in addition
the petitioner-husband has also denied his income at
Rs.38,000/- per month as security in-charge at HAL,
Sunabeda, rather he claims to be getting pension of
Rs.19,891/- per month. The petitioner-husband also
claims that his engagement as security in-charge at
HAL, Sunabeda is purely temporary and on the basis
of no work no pay and his income from such
employment is very meager and may be around
Rs.9,000/- to Rs.10,000/- per month, but he has to
pay EMI of Rs.5,953/- per month towards bank loan,
RPFAM No.425 of 2023 Page 3 of 13
Rs.4,250/- per month as LIC premium to protect the
future of the OPs and incurring medical expenses of
Rs.5,000/- per month for his dependent mother.
4. In the proceeding before the learned Judge
Family Court, Jeypore, both the parties adduced
evidence, both oral and documentary. After analyzing
the evidence on record upon hearing the parties, the
learned Judge Family Court, Jeypore has passed the
impugned order granting maintenance to the OPs.
Being aggrieved with the aforesaid judgment, the
husband has preferred this revision.
5. In the course of hearing, Mr.Basudev Mishra,
learned counsel for the petitioner-husband while not
disputing the relationship between the parties has,
however, challenged the impugned order mainly on
two grounds; firstly the OP-wife is not entitled to
maintenance because she voluntarily deserted the
petitioner and secondly the quantum of maintenance is
excessively high because the petitioner is only getting
monthly pension @ Rs.21,167/-, out of which, he has
to pay Rs.5,953/- per month towards bank loan,
RPFAM No.425 of 2023 Page 4 of 13
Rs.4,250/- per month towards LIC premium to protect
the future of the OPs and Rs.5,000/- per month
towards medical expenses of his dependent old
mother. In elaborating his contention, learned counsel
for the petitioner has submitted that the learned trial
Court has not only committed illegality by giving
emphasis on the evidence of wife, but also has
erroneously interpreted the law to grant maintenance
w.e.f. the date of application instead of the date of
order. Mr.Mishra, learned counsel for the petitioner
has accordingly relied upon the decisions in
Pashupati Acharya V. Dipali Acharya; 2012 (I)
ILR-CUT-504 and Rasmita Rout @ Baral and
others V. Maheswar Baral; 2001(I) OLR-411.
6. In reply, Mr.B.B.Singh, learned counsel
appearing for OP Nos. 1 to 3 has, however, strongly
refuted the submission as advanced for the petitioner
by contending inter alia that the impugned order stood
confirmed having been challenged by the OPs in
RPFAM No.397 of 2023 claiming enhancement of
maintenance, but the petitioner-husband is seeking an
RPFAM No.425 of 2023 Page 5 of 13
review of such order indirectly by pressing this
revision to set aside the impugned order which is
impermissible under law. It is also submitted by
Mr.Singh that the maintenance is payable from the
date of filing of application which has been reiterated
by the Apex Court in Rajnesh V. Neha and another;
2021(1)OLR(SC) 348. Further, Mr.Singh has
submitted that the learned trial Court after due
application of mind has passed the impugned order
which calls for no interference in this revision.
Accordingly, he has prayed to dismiss the revision.
7. After having bestowed an anxious and careful
consideration to the rival submissions upon perusal of
record, it appears to the Court that the revision-
petitioner has challenged the impugned judgment
mainly on three grounds; firstly the OP-wife is not
entitled to maintenance because she has withdrawn
from the society of the petitioner-husband without any
sufficient cause; secondly, the quantum of
maintenance as granted to the OP-wife is excessive
and liable to be reduced; and lastly, the maintenance
RPFAM No.425 of 2023 Page 6 of 13
amount is payable from the date of the impugned
judgment. Addressing the first contention of the
petitioner, this Court makes it ample clear that in a
revision, appreciation of evidence by Revisional Court
is impermissible, unless the findings recorded on a fact
is so perverse that is unacceptable to a prudent man,
but the revisional-petitioner in this case has mainly
relied upon the evidence of OP-wife to contend that
the wife has withdrawn from the society of the
husband without any sufficient cause. The main thrust
of the petitioner-husband challenge is based on the
admission of the OP-wife in her evidence to the effect
that she did not join with the husband even after
getting a notice from the Court in a proceeding U/S. 9
of the Hindu Marriage Act for restitution of conjugal
right and she had never approached the police about
the alleged torture made to her by the petitioner-
husband and his family members. Although the
appreciation of evidence is not permissible in
revisional proceeding, but as a abundant precaution to
address the contention of the petitioner, this Court
RPFAM No.425 of 2023 Page 7 of 13
reminds that the evidence has to read as a whole, but
not on piecemeal. Merely because the wife has
received a notice U/S. 9 of Hindu Marriage Act, it
would not be sufficient to construe that the wife has
no cause to refuse to live with her husband and if it is
borne out from the materials placed on record that the
wife is otherwise justified to refuse to live with her
husband, then she is perfectly grounded under law to
refuse to live with her husband.
8. In this case, the petitioner-husband has
alleged many things against the wife by unsuccessfully
suggesting to the OP-wife in the cross-examination
that her elder brother removed the petitioner from the
service and kept in his clause and later on tortured
him and that he engaged to look after the construction
work of his elder brother. These allegations are a few,
but there is long list of allegation and counter
allegation. However, it is not denied that the parties
are blessed with two children, but the petitioner-
husband has never made any endeavor as found from
the evidence to take back his own children. True it is
RPFAM No.425 of 2023 Page 8 of 13
that Section 125(4) of the CrPC stipulates that the
wife is not entitled to maintenance if she lives an
adulterous life or that she has no sufficient reason to
refuse to live with her husband or they are living
separately by mutual consent. In this case, on analysis
of evidence and materials placed on record, the
ground of challenge of the petitioner-husband about
the entitlement of the OP-wife for maintenance
appears to be imaginary and cannot be said to have
been established by the petitioner-husband so as to
deprive the OP-wife and the children from their
legitimate due of maintenance from the revision-
petitioner. In this regard, this Court considers it
profitable to refer to the decision in Rina Kumari @
Rina Devi @ Reena vrs. Dinesh Kumar Mahto @
Dinesh Kumar Mahato and another;2025 SCC
Online SC 72 wherein while answering to the
question “will a husband, who secures a decree for
restitution of conjugal rights, stand absolved of paying
maintenance to his wife by virtue of Sec. 125(4) of the
Code of Criminal Procedure, 1973, if his wife refuses to
RPFAM No.425 of 2023 Page 9 of 13
abide by the said decree and return to the matrimonial
home?”, the Apex Court in paragraph-38 has clearly
held that the disqualification U/S. 125(4) of CrPC is
not attracted even after passing of a decree of
restitution of conjugal rights. In this decision, the Apex
Court has further held thus:-
“29.Thus, the preponderance of
judicial thought weighs in favour of upholding
the wife’s right to maintenance under Section
125 CrPC and the mere passing of a decree
for restitution of conjugal rights at the
husband’s behest and non-compliance
therewith by the wife would not, by itself, be
sufficient to attract the disqualification under
Section 125(4) CrPC. It would depend on the
facts of the individual case and it would have
to be decided, on the strength of the material
and evidence available, whether the wife still
had valid and sufficient reason to refuse to
live with her husband, despite such a decree.
There can be no hard and fast rule in this
regard and it must invariably depend on the
distinctive facts and circumstances obtaining
in each particular case. In any event, a
decree for restitution of conjugal rights
secured by a husband coupled with non-
compliance therewith by the wife would not
be determinative straightaway either of her
right to maintenance or the applicability of
the disqualification under Section 125(4)
CrPC.”
9. On coming back to the quantum of
maintenance, it is the admitted case of the petitioner
RPFAM No.425 of 2023 Page 10 of 13
that he is a retired BSF Jawan and getting Rs.21,167/-
as monthly pension and he has resigned from
contractual service, but the aforesaid evidence itself
suggests that the petitioner has capacity to earn more
and he was also earning more by joining some
contractual service. Accepting, but not admitting that
the petitioner is not having any contractual service,
but he being quite capable to earn extra amount, the
income of the revision-petitioner can be taken at least
Rs.30,000/- per month by having some guess work
and thereby even after, deducting the liability of the
revision-petitioner towards EMI of loan which is for a
temporary period till clearance of loan, LIC premium
and medical expenses of dependent mother, the
petitioner can pay the maintenance amount to the wife
and children to the tune of Rs.9,000/- per month and,
therefore, the impugned order passed by the learned
trial Court directing the petitioner to pay a sum of
Rs.5,000/- to the wife and Rs.2,000/- each to the
minor children per month as monthly maintenance
cannot be considered as exorbitant, rather the same
RPFAM No.425 of 2023 Page 11 of 13
can be well considered to be commensurate to the
standard of living of the husband and, therefore, the
aforesaid finding of the learned trial Court calls of no
interference.
10. Thirdly, the contention of the revision-
petitioner with regard to grant of payability of
maintenance w.e.f. the date of order, it is clarified by
the Apex Court in Rajnesh (supra) wherein it is held
that maintenance is payable from the date of
application. The relevant paragraph of aforesaid
judgment is extracted hereunder: –
“Even though a judicial discretion is
conferred upon the Court to grant
maintenance either from the date of
application or from the date of the order in
S.125(2) Cr.PC., it would be appropriate to
grant maintenance from the date of
application in all cases, including Section
125 Cr.P.C. In the practical working of the
provisions relating to maintenance, we find
that there is significant delay in disposal of
the applications for interim maintenance for
years on end. It would therefore be in
the interests of justice and fair play that
maintenance is awarded from the date
of the application”.
RPFAM No.425 of 2023 Page 12 of 13
11. It is, therefore, clear that the challenge as
advanced by the revision-petitioner merits no
consideration and is liable to be rejected.
In the result, the revision stands dismissed on
contest, but in the circumstance, there is no order as
to costs.
(G. Satapathy)
Judge
Orissa High Court, Cuttack,
Dated the 4tht day of March, 2025/Kishore
Signature Not Verified
Digitally Signed
Signed by: KISHORE KUMAR SAHOO
Reason: Authentication
Location: High Court of Orissa
Date: 05-Mar-2025 13:26:31
RPFAM No.425 of 2023 Page 13 of 13
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