The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK W.P.(C) No.17056 of 2023 (In the matter of an application under Articles 226 and 227 of the Constitution of India) Lipika Nayak ....... Petitioner -Versus- Ajitav Nayak ....... Opposite Party Advocate for the parties For Petitioner : Mr. A. Tripathy, Adv. For Opposite Party : Mr. S.P. Dash, Adv. ---------------------------- CORAM: JUSTICE SANJAY KUMAR MISHRA --------------------------------------------------------------------------------- Date of Hearing & Judgment: 01.09.2025 --------------------------------------------------------------------------------- S.K. Mishra, J. 1. The present Writ Petition has been preferred by the Petitioner-wife, who is the Respondent in C.P. No.04/46 W.P.(C) No.17056 of 2023 Page 1 of 23 of 2020/2018, which is now pending in the Court of learned Judge, Family Court, Nayagarh. A prayer has been made by the Petitioner-wife to set aside the order dated 21.04.2023 passed by the learned Court below in the aforesaid C.P. and allow the Petitioner to file her Written Statement only after getting the maintenance and litigation expenses in terms of the order dated 28.10.2022 passed in I.A. No.01/2020-22/2018, arising out of C.P. No.04/46 of 2020/2018 . 2. Being noticed, though the Opposite Party- husband has appeared in this case, no Counter Affidavit has been filed till date opposing to such prayer made in the Writ Petition. However, on consent of the learned Counsel for the parties, the matter is taken up for hearing and disposal at the stage of admission based on the materials available on record. 3. Heard Mr. Tripathy, learned Counsel for the Petitioner-wife so also Mr. Dash, learned Counsel for the Opposite Party-husband. 4. Mr. Tripathy, learned Counsel for the Petitioner, drawing attention of this Court to order dated 27.12.2022 W.P.(C) No.17056 of 2023 Page 2 of 23 passed in C.P. No.04/2020-46/18 as at Annexure-4, submitted that the Petitioner-wife moved an application on 06.03.2018 in the said case with a prayer to allow her to file Written Statement after receiving the litigation expenses and maintenance. Though, vide order dated 27.12.2022, the learned Court below allowed the said prayer, but, vide subsequent order dated 21.04.2023, rejected the petition dated 21.03.2023 filed by the Petitioner-Respondent, which was moved before the Court below for dismissal of C.P. No.04/20-46/18 on the ground of non-compliance of order of maintenance passed by it dated. 28.10.2022 and the matter stood posted to 04.05.2023 for filing of Written Statement by the Petitioner-Respondent. 4.1
Legal Reasoning
Mr. Tripathy further submitted that, the learned Court below ought to have allowed the Petition dated 21.03.2023 for dismissal of proceeding in C.P. No.04/20- 46/18 for non-compliance of its own order, instead of directing the Petitioner-Respondent to file her Written Statement, which is contrary to its own order dated. 27.12.2022. W.P.(C) No.17056 of 2023 Page 3 of 23 4.2 Mr. Tripathy submitted that, in view of the judgment of this Court in (Gouri Das Vs. Pradyumna Kumar Das), reported in 1986 (II) OLR 44, the Petitioner- Respondent should not have been compelled to file her Written Statement without ensuring compliance of order dated 28.10.2022 passed in I.A. No.01/2020-22/2018 so also contrary to the Order dated 27.12.2022, vide which the prayer of the Petitioner-Respondent was allowed. 5. Per contra, Mr. Dash, learned Counsel for the Opposite Party-husband submitted that, though vide petition dated 06.03.2018, a prayer was made by the Petitioner-Respondent before the Court below to allow her to file Written Statement after receiving litigation expenses and maintenance, but vide order dated 27.12.2022, the learned Court below allowed her prayer only to the effect of filing her written statement, as is evident from the said order dated 27.12.2022, as at Annexure-4 of the Writ Petition. 5.1 Mr. Dash further submitted that, misinterpreting the said order dated 27.12.2022, the Petitioner-Respondent is avoiding to file Written Statement W.P.(C) No.17056 of 2023 Page 4 of 23 in C.P. No.04/20-46/18. The learned Court below was justified to pass the impugned order dated 21.04.2023 rejecting the petition of the Petitioner-Respondent dated 21.03.2023. 5.2 He further submitted that there is no such provision under law for dismissal of matrimonial proceeding for non-compliance of interim maintenance order passed by the concerned Court. Hence, there being no infirmity in the
Decision
impugned order, the writ petition deserves to be dismissed. 6. In view of the submissions made by learned Counsel for the parties, it would be apt to reproduce below the order dated 27.12.2022 passed in C.P. No.04/20- 46/18 for proper adjudication of the present lis. “C.P. 04/2020 of 46/18 27.12.2022 This suit is posted today for orders on a petition dtd. 6.3.2018 filed by the learned advocate for the respondent with a prayer to allow the respondent to file written statement after receiving the litigation expenses and maintenance. Heard the learned advocate for the petitioner and the learned advocate for the respondent. W.P.(C) No.17056 of 2023 Page 5 of 23 On perusing the suit record I find that this suit was instituted before the Judge, Family Court, Balasore on the order of the Hon’ble Court passed in TRP (Civil) in 51 of 2018 dtd. 14.11.2019 the proceeding was transferred to this court and after transfer of the proceeding the interim application no.01/2020-22/2018 disposed of on contest on 28.10.2022. The respondent after the transfer of this proceeding has appeared in the suit and now praying for filing the written statement in the suit. The order sheet shows that the respondent was granted time to file her written statement. The respondent in her application for interim maintenance u/s 24 of the H.M. Act has clearly stated her stand on the entire suit of the plaintiff/petitioner. Considering the above circumstances and the fact that the suit was not taken up for hearing due to covid, I think there is no fault of this present respondent and this is a divorce suit and both the parties well educated and well placed, in the circumstances the prayer is allowed and the respondent to file her written statement in the circumstances no order as to cost. Put up on 10.01.2023 for filing written statement.” (Emphasis Supplied) 7. Admittedly, prior to the aforesaid order, vide order dated 28.10.2022, the learned Court below passed an W.P.(C) No.17056 of 2023 Page 6 of 23 order directing the present Opposite Party-husband, who is the Petitioner in C.P. No.04/2020-46/2018, to pay interim maintenance so also litigation expenses to the Petitioner (Respondent in C.P. No.04/2020-46/2018). The Operative portion of the said order, being relevant, is extracted below: “ORDER Husband Ajitava Nayak is directed to pay Rs.5,000/- (Rupees seven thousand) per month as interim maintenance to the wife Lipika Nayak, Rs.2000/- (rupees three thousand) per month to the daughter towards her education by 10th of each succeeding month till disposal of original suit. Rs.10,000/-(Rupees ten thousand) towards litigation expenses be paid by the OP to the petitioner within one month of passing of the order. The arrear maintenance from 06.03.2018 till date be paid within 54 months from the date of this order in fifty four equal installment. Petitioner-wife is at liberty to recover the arrear as well as current interim maintenance through process of the Court in case husband Ajitava failed his obligation imposed by this order.” 8. Because of non-compliance of the said order, the Petitioner-wife moved an application before the learned Court below on 21.03.2023 for dismissal of C.P. No.04/2020-46/2018 on the ground of non-compliance of W.P.(C) No.17056 of 2023 Page 7 of 23 the said order. But, the learned Court below rejected the said petition directing the Petitioner to file her Written Statement on 04.05.2023, which is allegedly contrary to its own Order dated 27.12.2022, vide which the Petitioner was permitted to file her Written Statement after receiving the litigation expenses and maintenance. 9. On being asked during hearing, as to whether the Opposite Party-husband challenged the said Order dated 28.10.2022 passed in I.A. No.01/2020-22/2018 (arising out of C.P. No.04/2020-46/2018) as at Annexure- 3, Mr. Dash, learned Counsel for the Opposite Party- husband fairly submitted that his client preferred W.P.(C) No.32693 of 2022 challenging the said order before this Court. However, on 05.05.2023, the Writ Petition stood disposed of at the stage of admission without interfering with the order impugned in the said Writ Petition, with an observation that the Petitioner is at liberty to move an application for early disposal of C.P. No.4/2020-46/2018. Learned Counsel for the Opposite Party-husband also filed the certified copy of the said order dated 05.05.2023 passed W.P.(C) No.17056 of 2023 Page 8 of 23 in W.P.(C) No.32693 of 2022 in the Court, which is reproduced below for ready reference. “ORDER 05.05.2023 1. This matter is taken up through hybrid mode. 2. The Petitioner in this writ petition prays for setting aside the order dated 28th October, 2022 (Annexure-3) passed by learned Judge, Family Court, Nayagarh in I.A. No.1 of 2020-22 of 2018 (arising out of C.P. No. 4 of 2020-46 of 2018), whereby allowing an application under Section 24 of Hindu Marriage Act, 1955, he has been directed to pay pendente lite maintenance of Rs.5,000/- per month to the Opposite Party and Rs.2,000/- per month to his minor daughter for her education along with litigation expenses of Rs.10,000/-. 3. In course of hearing, Mr. Dash, learned counsel for the Petitioner submits that interest of justice will be best served, if a direction is made to learned Judge, Family Court Nayagarh for early disposal of C.P. No. 4 of 2020-46 of 2018. 4. In view of such submission, this Court without interfering with the impugned order under Annexure-3, disposes of the writ petition W.P.(C) No.17056 of 2023 Page 9 of 23 with an observation that the petitioner is at liberty to move an application for early disposal of C.P. No. 4 of 2020-46 of 2018, if the matter is otherwise ready for hearing. In that event, learned Judge, Family Court, Nayagarh shall do well to consider the said application and proceed with the matter accordingly. Urgent certified copy of this order be granted on proper application.” (Emphasis Supplied) 10. From the discussions made above, the following Issues emerge to be dealt in the present lis: i) Whether, vide Order dated 27.12.2022, the learned Court below allowed the Petitioner- Respondent to file her Written Statement in C.P. No.04/2020-46/2018, only after compliance of its order dated 28.10.2022 regarding payment of litigation expenses and maintenance? ii) Is there any provision under the law to permit so? iii) Whether the learned Court below was justified to pass the impugned order dated 21.04.2023, vide which the Petitioner’s application for dismissing C.P. No.04/2020-46/2018 on the ground of non-compliance of Order dated 28.10.2022 stood rejected and she was directed to file Written Statement ? W.P.(C) No.17056 of 2023 Page 10 of 23 iv) Whether a matrimonial proceeding can be dismissed for non-compliance of interlocutory order of maintenance passed by the concerned Court ? So far as issues No-(i) to (iii), being interlinked, are taken up together for the sake of brevity. 11. Admittedly, prior to order dated 27.12.2022, the learned Court below, vide order dated 28.10.2022, directed the Opposite Party-husband to pay interim maintenance to the Petitioner-wife so also her minor daughter towards her education, as has been extracted above. The said Order, being challenged in W.P.(C) No.32693 of 2022, has attained finality. 12. As is revealed from the Order dated 27.12.2022 passed in C.P. No.04/20-46/18, admittedly, the Petitioner- Respondent filed an application to allow her to file the Written Statement after receiving litigation expenses and maintenance in terms of order dated 28.10.2022 passed in I.A. No.01/2020-22/2018. The learned Court below, though mentioned about such prayer made in the petition in the first para of the said order dated 27.12.2022, in the ordering portion, it was simply mentioned that “Put up on W.P.(C) No.17056 of 2023 Page 11 of 23 10.01.2023 for filing of written statement.” The said order does not reflect that the prayer made by the Petitioner in her petition dated 06.03.2018 was allowed in toto. However, because of such ambiguity in the Order dated 27.12.2022, as extracted above, the Petitioner-Respondent was under a bona fide impression that she had been allowed to file her Written Statement by the learned Court below only after payment of litigation expenses and maintenance in terms of the Order dated 28.10.2022, for which she did not file her Written Statement. Rather, she chose to file an application on 21.03.2023 for dismissal of C.P. No.04/20-46/18 on the ground of non-compliance of order dated 28.10.2022. Though the learned Court below rejected the said Petition, but still allowed the Petitioner-Respondent to file the Written Statement. 13. There is no such provision under the law permitting the wife to file Written Statement in a matrimonial proceeding only after receiving maintenance and litigation expenses. Rather, in Gouri Das (supra), relied upon by the learned Counsel for the Petitioner, this W.P.(C) No.17056 of 2023 Page 12 of 23 Court, relying on the Judgments of various High Courts, held as follows: “7. The learned counsel for the opposite party has relied on AIR 1981 Jammu & Kashmir 5 Purna Chand v. Mst. Kamala Devi and contended that the proceeding for the purpose of Section 24 of the Act commences with the settlement of issues. The aforesaid decision has, however, been overruled by the Full Bench of the same Court in AIR 1982 Jammu & Kashmir 98 Amrit Lal Nohru v. Usha Nehru Kotwal, J. speaking for the Full Bench observed that there was no warrant for the proposition that proceeding in a suit commences only from the stage contemplated by Order 13. The stage of first hearing is one of the various stages in the proceeding which starts as soon as the plaint is filed in Court. The term ’during’ in Section 24(1) implies the period intervening the commencement and termination of the main proceeding. The matter can be viewed from another angle. The object of Section 24 is twofold- Firstly, to prevent vagrancy resulting from strained relations between the husband and the wife, and secondly, to ensure that the indigent litigating spouse is not handicapped in defending or prosecuting the case due to want of money. See Amrit Lal’s case. In AIR 1962 Cal. 88 Smt. Anita W.P.(C) No.17056 of 2023 Page 13 of 23 Karmokar v. Birendra Chandra Karmakar, it was held that if the amount directed to be paid towards pendente lite maintenance and litigation expense is not paid, further proceedings should be stayed so that the case of the indigent spouse is not hampered. In AIR 1968 Cal. 68 Smt. Latika Ghosh v. Nirmal Kumar Ghosh, it was held that the wife could not be compelled to file her written statement before her prayer for maintenance and expenses was considered. She could insist that her application Under Section 24 should first be decided before she was called upon to file her written statement. Similar view was taken in AIR 1981 All. 178 Smt. Anjula v. Milan Kumar. The Courts, therefore, have insisted that whenever an application Under Section 24 of the Act is made, the same must be disposed of before any further steps are taken in the main proceeding. Therefore, whenever an order is passed directing payment of pendente lite maintenance and litigation expense, the Courts should in exercise of their inherent power stay further proceedings of the main proceeding till the order passed by it granting pendente lite maintenance and litigation expense is complied with by the other side. I am, therefore, of the view that the expressions ’during the proceeding’ in Section 24 should not W.P.(C) No.17056 of 2023 Page 14 of 23 be construed as to mean the stage of settlement of issues.” (Emphasis Supplied) 14. Admittedly, an Order has already been passed since 28.10.2022 for payment of maintenance as well as litigation expenses, vide which I.A. No.01/2020-22/2018 filed by the Petitioner-Respondent stood allowed and disposed of. After disposal of I.A. No.01/2020-22/2018, instead of taking necessary steps for execution of the said order in accordance with law and filing Written Statement, the Petitioner-wife filed petition on 21.03.2023 for dismissal of C.P. No.04/20-46/18. Thereafter, such petition being rejected, she has preferred the present Writ Petition with a prayer to set aside the said order dated 21.04.2023 and allow her to file the Written Statement only after getting the maintenance and litigation expenses. Further proceeding in C.P. No.04/20-46/18, being stayed at the instance of the Petitioner, the civil proceeding is pending before the learned Court below for about last 7 years, awaiting filing of Written Statement. From the discussions made above, this Court is of the view that, in absence of any W.P.(C) No.17056 of 2023 Page 15 of 23 legal provision so also clear and unambiguous order to the said effect, thereby permitting the Petitioner-Respondent to file her Written Statement after execution of Order dated 28.10.2022 passed in I.A. No.01/2020-22/2018, the Petitioner -Respondent was not justified to delay the filing of WS on such plea. The learned Court below was justified to pass the impugned order dated 21.04.2023. Issue Nos. i) to iii) are answered accordingly against the Petitioner. 15. So far as issue No.(iv), the Punjab and Haryana High Court in Mohinder Verma v. Sapna, reported in 2014 SCC OnLine P&H 25147, held as follows: “8. Section 24 of the Act empowers the matrimonial court to award maintenance pendente lite and also litigation expenses to a needy and indigent spouse so that the proceedings can be conducted without any hardship on his or her part. The proceedings under this section are summary in nature and confer a substantial right on the applicant during the pendency of the proceedings. Where this amount is not paid to the applicant, then the very object and purpose of this provision stands defeated. No doubt, remedy of execution of decree or order passed by the matrimonial court is W.P.(C) No.17056 of 2023 Page 16 of 23 available under Section 28-A of the Act, but the same would not be a bar to striking off the defence of the spouse who violates the interim order of maintenance and litigation expenses passed by the said court. In other words, the striking off the defence of the spouse not honouring the court’s interim order is the instant relief to the needy one instead of waiting endlessly till its execution under Section 28-A of the Act. Where the spouse who is to pay maintenance fails to discharge the liability, the other spouse cannot be forced to adopt time consuming execution proceedings for realising the amount. Court cannot be a mute spectator watching flagrant disobedience of the interim orders passed by it showing its helplessness in its instant implementation. It would, thus, be appropriate even in the absence of any specific provision to that effect in the Act, to strike off the defence of the erring spouse in exercise of its inherent power under Section 151 of the Code of Civil Procedure read with Section 21 of the Act rather than to leave the aggrieved party to seek its enforcement through execution as execution is a long and arduous procedure. Needless to say, the remedy under Section 28-A of the Act regarding execution of decree or interim order does not stand obliterated or extinguished by striking off the defence of the defaulting spouse. Thus, where the spouse who is directed W.P.(C) No.17056 of 2023 Page 17 of 23 to pay the maintenance and litigation expenses, the legal consequences for its non-payment are that the defence of the said spouse is liable to be struck off.” (Emphasis Supplied) 16. The above-stated principles were subsequently affirmed by the Supreme Court in Rajnesh v. Neha reported in (2021) 2 SCC 324, which comprehensively addressed various facets of maintenance law, including interim maintenance, overlapping jurisdictions, disclosure obligations, criteria for determining quantum, and enforcement mechanisms. The Supreme Court categorically upheld the views taken by the Punjab & Haryana High Court in Mohinder Verma (supra) as laying down the correct position of law. 17. Regarding the enforcement of orders granting maintenance, in Rajnesh v. Neha (supra), the Supreme Court held as follows: “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 W.P.(C) No.17056 of 2023 Page 18 of 23 legislation. Execution petitions usually remain pending for months, if not years, which completely 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 W.P.(C) No.17056 of 2023 Page 19 of 23 (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. 118. Some Family Courts have passed orders for striking off the defence of the respondent in case of non-payment of maintenance, so as to facilitate speedy disposal of the maintenance petition. In Kaushalya v. MukeshJain [Kaushalya v. Mukesh Jain, (2020) 17 SCC 822 : 2019 SCC OnLine SC 1915] , the Supreme Court allowed a Family Court to strike off the defence of the respondent, in case of non- payment of maintenance in accordance with the interim order passed. 132. For enforcement/execution of orders of maintenance, it is directed that an order or decree of maintenance may be enforced under W.P.(C) No.17056 of 2023 Page 20 of 23 Section 28-A of the Hindu Marriage Act, 1955; Section 20(6) of the DV Act; and Section 128 of CrPC, as may be applicable. The order of maintenance may be enforced as a money decree of a civil court as per the provisions of the CPC, more particularly Sections 51, 55, 58, 60 read with Order 21.” (Emphasis Supplied) 18. From the discussions made above, so also the settled position of law, it is amply clear that there is no such provision under the C.P.C, 1908 or Hindu Marriage Act, 1955 or Family Courts Act, 1984 for dismissal of a matrimonial proceeding for non-compliance of interim order of maintenance passed under Section 24 of the Act, 1955. Hence, this Court is of the view that a matrimonial proceeding cannot be dismissed for non-compliance of interlocutory order of maintenance passed by the concerned Court. The appropriate remedy would be to initiate an execution proceeding under Section 28-A of the Hindu Marriage Act, 1955, read with Section 18 of the Family Courts Act, 1984 and Order 21 Rule 94 of CPC before the concerned Court, so also to file petition to strike off the pleadings of the party, in case of non-payment of W.P.(C) No.17056 of 2023 Page 21 of 23 maintenance in accordance with the interim order passed. Issue No.(iv) is answered accordingly. 19. However, in view of the peculiar facts and circumstances, as detailed above, so also settled position of law, the Writ Petition stands disposed of giving liberty to the Petitioner-wife, who is the Respondent in C.P. No.04/2020, to initiate an execution proceeding for compliance of Order dated 28.10.2022 passed in I.A. No.01/2020-22/2018, so also to move an application to strike off the pleadings in C.P. No.04/2020, if so advised. It is made clear that, if such applications are moved, the learned Judge, Family Court, Nayagarh shall deal with and dispose of the said applications first before proceeding further on merit in C.P. No.04/2020-46/2018). As the C.P. is of the year 2018, which was renumbered as C.P. 04/2020, being transferred from the Court of learned Judge, Family Court, Balasore to the Court of learned Judge, Family Court, Nayagarh, it is made clear that the Petitioner-wife is to file her Written Statement in C.P. W.P.(C) No.17056 of 2023 Page 22 of 23 04/2020, if she intends to do so, at the earliest preferably, within a period of four weeks hence. No order as to costs. 20. Interim order dated 26.06.2023 passed in I.A. No.7728 of 2023 stands vacated. 21. Urgent certified copy of the Judgment be granted as per rules. …….…………………… S.K. MISHRA, J. Orissa High Court, Cuttack. Dated, the 1st September, 2025/Kanhu Signature Not Verified Digitally Signed Signed by: KANHU BEHERA Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 09-Sep-2025 18:52:15 W.P.(C) No.17056 of 2023 Page 23 of 23