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2026 DAILYLAW 27197 (ORI)

Harekrishna Mohanty v. Pratima Sahoo @ Mohanty

2026-02-11

Manash Ranjan Pathak, Sibo Sankar Mishra

body2026
JUDGMENT : S.S. Mishra, J. The appellant–husband has filed Civil Proceeding No. 761 of 2013 before the learned Judge, Family Court, Cuttack under Section 13(1)(ia) of the Hindu Marriage Act, 1955, seeking dissolution of marriage by a decree of divorce on the ground of cruelty and harassment allegedly meted out by the respondent-wife. However, by judgment dated 19.11.2019, the learned Judge, Family Court, Cuttack dismissed the said Civil Proceeding. 2. Being aggrieved by the said judgment, the appellant has preferred an appeal by filing Matrimonial Appeal No. 162 of 2019 before this Court. The coordinate Bench of this Court vide order dated 28.06.2022, while setting aside the judgment dated 19.11.2019, remanded the civil proceeding to the learned Judge, Family Court, Cuttack for fresh adjudication. For convenience of ready reference, the relevant part of the said order dated 28.06.2022 is reproduced hereunder:- “5. Apart that, by a special application filed by the Respondent, some additional materials have been placed on records to show the financial strength of the Appellant. It has been asserted that riches have come to the Appellant after death of his mother who was a Government employee. Counsel for the parties have urged in unison that the matrimonial suit should be remanded to the court of the Judge, Family Court, Cuttack. In the face of this submission, we are of the view that since the parties are in the half-way mark towards resolution and they have been stuck as alimony could be settled, by way of remand, let the process continue. To draw an abrupt end, would not support any purpose. 6. Accordingly, this suit is remanded with the following observations:- i) The judge, Family Court. Cuttack shall allow the parties to bring the additional evidence, confined to the financial strength of the Appellant and after such evidence, if any, is recorded the Judge, Family Court shall determine the permanent alimony if the parties continue to the approach as adopted before this court, unless the parties by that time mutually decide the quantum of alimony. There shall not be any inhibition to accept such quantum by the Judge, Family Court. ii) If the quantum of alimony is so decided by the parties, the consent terms be recorded and depending thereupon, the marriage may be dissolved by a decree of divorce. 7. There shall not be any inhibition to accept such quantum by the Judge, Family Court. ii) If the quantum of alimony is so decided by the parties, the consent terms be recorded and depending thereupon, the marriage may be dissolved by a decree of divorce. 7. It is made absolutely clear that if the memorandum of consent terms are not filed in the manner as noted above, the exercise of quantifying the alimony may be treated as redundant. In that case, the impugned judgment shall be deemed as restored. No elaborate judgment in the event will be required to be drawn. For the purpose of remand, we interfere with the said judgment. It is accordingly, set aside. 8. In the result this appeal is partly allowed. 9. Draw the decree accordingly. 10. Having regard to the nature of the dispute, the Judge, Family Court, Cuttack is requested to take all possible efforts to complete the said civil proceeding, on remand, within a period of six months from the date when a copy of the order will be received by him.” While remanding the matter, this Court specifically directed the learned Judge, Family Court, Cuttack to afford opportunity to the parties to file additional affidavits confined to the financial capacity of the appellant and, pursuant whereof, to determine the quantum of permanent alimony. This Court further observed that, upon such determination if the parties so agreed, the consent terms could be recorded and depending thereupon, the marriage could be dissolved by a decree of divorce. 3. However, after remand, the learned Judge, Family Court, Cuttack failed to determine the quantum of permanent alimony in terms of the directions issued by this Court and, instead, by order dated 20.04.2023, restored the earlier judgment dated 19.11.2019. The relevant portion of the impugned order dated 20.04.2023 is reproduced hereunder:- “ 1. Both parties are absent. 2. Counsel for the respondent is absent, but counsel for the petitioner is present. 3. Copy of the memo dated 13.04.2023 is received by the counsel for the respondent. No reply is filed on behalf of the respondent. Counsel for the petitioner is praying to pass an order in view of the order passed by Hon'ble Court on 28.6.22 in MATA 162 of 2019. Perused the observation of Hon'ble Court in the said matter which runs as follows: XXXXX XXXXX XXXXX (Already reproduced in the preceding paragraphs) 4. No reply is filed on behalf of the respondent. Counsel for the petitioner is praying to pass an order in view of the order passed by Hon'ble Court on 28.6.22 in MATA 162 of 2019. Perused the observation of Hon'ble Court in the said matter which runs as follows: XXXXX XXXXX XXXXX (Already reproduced in the preceding paragraphs) 4. In this instant case as both parties are absent, hence, it is presumed by this Court that the parties do not continue to approach as adopted before Hon’ble High Court of Orissa and they have not mutually decided the quantum of alimony. So, no memorandum of consent terms is filed. 5. Therefore, the exercise of quantifying the alimony is treated as redundant. Accordingly, judgment of this court passed on 19.11.2019 is restored.” Being aggrieved thereby, and alleging non-compliance with the specific directions issued by this Court in its remand order dated 28.06.2022, the appellant has preferred the present appeal assailing the legality and propriety of the judgment dated 19.11.2019 as well as the order dated 20.04.2023 passed by the learned Judge, Family Court, Cuttack in Civil Proceeding No. 761 of 2013. 4. Heard Mr. Sujit Kumar Biswal, learned counsel for the appellant and Mr. Debi Prasad Dash, learned counsel for the respondent. 5. The learned trial Court has completely misread the remand order dated 28.06.2022 made by this Court. It appears that the learned Family Court erroneously construed the remand order and arrived at the conclusion that the quantification of alimony could not be done as the parties could not arrive at a mutual decision on quantum. This Court remanded the matter for determination of permanent alimony afresh affording opportunity to both the parties to bring evidence on record. Although the parties have filed their respective evidence but the learned Judge, Family Court by a cryptic order restored its earlier judgment dated 19.11.2019 without quantifying the alimony, which was mandated to be decided vide the remand order dated 28.06.2022. In this scenario, we have no other option, rather to set aside the order dated 20.04.2023 passed by the learned Judge, Family Court, Cuttack in C.P. No.761 of 2013 and relegate the matter back to the Judge, Family Court, Cuttack to decide the matter afresh strictly in accordance with the order dated 28.06.2022 passed by this court in MATA No.162 of 2019. 6. 6. Since the MATA proceeding initiated by the appellant-husband has been prolonging for more than last thirteen years, we consider it expedient to direct the learned Judge, Family Court, Cuttack to make an endeavour to finally dispose of the said proceeding within a maximum period of three months hence. 7. In the interregnum, this Court is duty-bound to pass an appropriate order with regard to the maintenance of the respondent- wife. The materials available on record disclose that the respondent- wife is impecunious and is leading a life of destitution, without any financial assistance whatsoever from the appellant-husband. Denial of maintenance during the pendency of the proceeding would inevitably push the respondent-wife into vagrancy, thereby defeating the very object of the matrimonial relationship, unless the same is severed in accordance with law. The law relating to maintenance is no longer res integra. The Hon’ble Supreme Court in the case of Chaturbhuj v. Sita Bai , (2008) 2 SCC 316 , while explaining the object and scope of maintenance proceedings, has held as follows: 6. The object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. The phrase “unable to maintain herself” in the instant case would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow. Section 125 CrPC is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v. Veena Kaushal [ (1978) 4 SCC 70 : 1978 SCC (Cri) 508 : AIR 1978 SC 1807 ] falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. 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 : (2005) 2 Supreme 503 ] . 7. Under the law the burden is placed in the first place upon the wife to show that the means of her husband are sufficient. In the instant case there is no dispute that the appellant has the requisite means. But there is an inseparable condition which has also to be satisfied that the wife was unable to maintain herself. These two conditions are in addition to the requirement that the husband must have neglected or refused to maintain his wife. It has to be established that the wife was unable to maintain herself. The appellant has placed material to show that the respondent wife was earning some income. That is not sufficient to rule out application of Section 125 CrPC. It has to be established that with the amount she earned the respondent wife was able to maintain herself. 8. In an illustrative case where the wife was surviving by begging, it would not amount to her ability to maintain herself. It can also be not said that the wife has been capable of earning but she was not making an effort to earn. Whether the deserted wife was unable to maintain herself, has to be decided on the basis of the material placed on record. Where the personal income of the wife is insufficient she can claim maintenance under Section 125 CrPC. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. In Bhagwan Dutt v. Kamla Devi [ (1975) 2 SCC 386 : 1975 SCC (Cri) 563 : AIR 1975 SC 83 ] it was observed that the wife should be in a position to maintain a standard of living which is neither luxurious nor penurious but what is consistent with status of a family. In Bhagwan Dutt v. Kamla Devi [ (1975) 2 SCC 386 : 1975 SCC (Cri) 563 : AIR 1975 SC 83 ] it was observed that the wife should be in a position to maintain a standard of living which is neither luxurious nor penurious but what is consistent with status of a family. The expression “unable to maintain herself” does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 CrPC. Thus, mere survival by making strenuous or humiliating efforts cannot be construed as an ability to maintain oneself so as to deny maintenance. In a similar vein, the Hon’ble Supreme Court in Bhuwan Mohan Singh v. Meena , (2015) 6 SCC 353 , has strongly deprecated prolonged adjudication of maintenance claims and insensitivity towards the plight of deserted wives, observing as under: “…..The two issues that pronouncedly emanate from this appeal by special leave are whether the Family Court while deciding an application under Section 7 of the Family Courts Act, 1984 (for brevity “the Act”) which includes determination of grant of maintenance to the persons as entitled under that provision, should allow adjournments in an extremely liberal manner remaining oblivious of the Objects and Reasons of the Act and also keeping the windows of wisdom closed and the sense of judicial responsiveness suspended to the manifest perceptibility of vagrancy, destitution, impecuniosity, struggle for survival and the emotional fracture, a wife is likely to face under these circumstances and further exhibiting absolute insensitivity to her condition, who, after losing support of the husband who has failed to husband the marital status denies the wife to have maintenance for almost nine years as that much time is consumed to decide the lis and, in addition, to restrict the grant of maintenance to the date of order on some kind of individual notion. Both the approaches, as we perceive, not only defeat the command of the legislature but also frustrate the hope of wife and children who are deprived of adequate livelihood and whose aspirations perish like mushroom and possibly the brief candle of sustenance joins the marathon race of extinction. This delay in adjudication by the Family Court is not only against human rights but also against the basic embodiment of dignity of an individual. 2. This delay in adjudication by the Family Court is not only against human rights but also against the basic embodiment of dignity of an individual. 2. Be it ingeminated that Section 125 of the Code of Criminal Procedure (for short “the Code”) was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created whereunder she is compelled to resign to her fate and think of life “dust unto dust”. It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able-bodied. There is no escape route unless there is an order from the court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds.” The Hon’ble Supreme Court categorically held that a husband cannot be permitted to take subterfuges to deny maintenance and compel the wife to resign to a life of destitution. 8. There is no escape route unless there is an order from the court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds.” The Hon’ble Supreme Court categorically held that a husband cannot be permitted to take subterfuges to deny maintenance and compel the wife to resign to a life of destitution. 8. In view of the aforesaid settled principles of law, the prolonged pendency of the matrimonial proceeding, and the undisputed position that the respondent-wife has been deprived of maintenance for a considerable length of time, this Court deems it just, proper and necessary to direct payment of interim maintenance to the respondent- wife during the pendency of the proceeding. Therefore, we direct the appellant-husband to pay Rs.10,000/- (rupees ten thousand) per month from the month of January, 2026 till the disposal of the present lis. The payment of maintenance would be without prejudice to right and contention of the parties as the same has been tentatively determined and directed without resorting to adjudicative process and only to prevent vagrancy of the wife. 9. The appeal was finally heard and the judgement was reserved on 27.01.2026, however, again this matter was listed before this Court under the heading “To be mentioned” on 06.02.2026. Learned counsel for the respondent-wife was directed to furnish the bank account details of his client so that the appellant-husband would deposit the monthly interim maintenance in the said account. The bank account details have been duly filed in the court on 9 th of February 2026 and the same has been taken on record. Accordingly, it is directed that the appellant-husband shall make good the payment every month without fail in the account of the wife, maintained with State Bank of India, Markatnagar Branch, Cuttack (IFSC:SBIN0011575) bearing Account No.34506214257. 10. Since this appeal has been remanded back, both the appellant- husband and the respondent-wife shall appear before the learned Judge, Family Court, Cuttack on 26.02.2026. 11. Registry shall communicate this judgement to the learned Judge, Family Court, Cuttack forthwith. 12. With the aforementioned observation, the MATA is disposed of as partly allowed.