The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.488 of 2025 Upendra Nath Nayak …. Petitioner Dr. Kedar Nath Tripathy, Advocate -Versus- Ginter Loya …. Opposite Party Mr. Nitesh Kumar Singh, Advocate CORAM: MR. JUSTICE R.K. PATTANAIK ORDER 24.10.2025 Order No. 04. 1. Heard Dr. Tripathy, learned counsel for the petitioner
Legal Reasoning
and Mr. Singh, learned counsel for the opposite party. 2. Instant revision is filed by the petitioner assailing the impugned order dated 7th July, 2025 as at Annexure-1 passed in connection with Criminal Appeal No.73 of 2024 confirming the order dated 5th June, 2024 of the learned J.M.F.C.(R) Cog., Berhampur in MC No.6 of 2022 at Annexure-5 on the grounds inter alia that the same is not legally tenable and hence, liable to be interfered with and set aside. 3. Dr. Tripathy, learned counsel for the petitioner submits that there has been no marriage between the parties and not even any domestic relationship exists between them and Page 1 of 7 therefore, the learned J.M.F.C.(R) Cog., Berhampur should not have directed interim maintenance in terms of Section 23 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as ‘the DV Act’) as against which the petitioner filed the appeal and therein, an application for stay of the order of maintenance dated 5th June, 2024 was pressed into service but it has resulted in passing of the impugned order dated 7th July, 2025 i.e. Annexure-1, which is not sustainable in law, hence, to be set at naught. 4. Mr. Singh, learned counsel for the opposite party raised a preliminary objection regarding maintainability of the revision on the ground that the order of the learned court below at Annexure-1 is not revisable. The submission is that against interlocutory order, revision does not lie, therefore, legality or otherwise of the impugned order at Annexure-1 cannot be entertained by this Court, hence, the same is to be dismissed in limine. In support of above contention, Mr. Singh, learned counsel cited a decision of the Apex Court in Shalu Ojha Vrs. Prashant Ojha 2019 (2) SCC 99 with the further submission that a Sessions court dealing with an appeal has no express powers to pass interim orders, hence, therefore, any such order as per Annexure-1 by the learned court below is not permissible and for that matter, no revision to lie either. 5. Dr. Tripathy, learned counsel for the petitioner, on the contrary, would submit that the revision is maintainable against Page 2 of 7 an intermediate order and therefore, the jurisdiction of this Court has been invoked. While advancing such an argument, Dr. Tripathy, learned counsel placed reliance on a decision of the Apex Court in Girish Kumar Suneja Vrs. Central Bureau of Investigation, (2017) 14 SCC 809 to contend that a revision is to lie against intermediate orders in contrast to an order of interlocutory in nature. In support of the submission, a decision of Uttarakhand High Court in Ashu Dhiman Vrs. Smt. Jyoti Dhiman in Criminal Misc. Application No.434 of 2018 dated 15th November, 2018 is also cited. The contention is that against any such order on interim maintenance, the revision is maintainable as in the decision (supra), in a proceeding under Section 125 Cr.P.C., it has been held so. In reply and response to the above, Mr. Singh, learned counsel for the opposite party submits that the decisions cited hereinabove from the side of the petitioner are not in relation to any such proceedings under the DV Act. 6. In so far as the decision in Girish Kumar Suneja (supra) is concerned, it has been held and observed therein that Section 397(1) Cr.P.C. appears to confer wide powers for the Court to exercise with a rider by sub-section (2) thereof. It is also held therein that there are three categories of orders, one is ‘final’ and other one is ‘intermediate’ besides ‘interlocutory’ and in so far as final and intermediate orders are concerned, revision is to lie challenging the same but not against any such interlocutory order and according to Dr. Tripathy, learned Page 3 of 7 counsel for the petitioner, the order as at Annexure-1 is not interlocutory, rather, an intermediate order and therefore, it is amenable to revisional jurisdiction. But, referring to the scheme of the DV Act and Section 28 thereof and all other provisions including Section 29, it is submitted by Mr. Singh, learned counsel for the opposite party that the revision is not maintainable against the order i.e. Annexure-1 as in any case the Sessions court does not possess powers to pass interim orders in appeals filed under section 29 of the DV Act. 7. Considering the citations referred to by both the sides and having regard to the fact that the petitioner in the appeal before the learned court below moved such an application seeking stay of the interim order of maintenance under Section 23 of the DV Act and the same having been disposed of, according to the Court, such an order is final and therefore, the revision is maintainable. In other words, such a decision as per Annexure-1 cannot be treated as an interlocutory order but final involving an adjudication affecting the rights of the petitioner, even though, it has been passed by the learned court below, while entertaining the appeal pending disposal. So, therefore, the Court is not in agreement with the contention of Mr. Singh, learned counsel for the opposite party on the question of maintainability of the revision. It is, hence, concluded that the order at Annexure-1 dated 7th July, 2025 in Criminal Appeal No.73 of 2024 is revisable. Page 4 of 7 8. In so far as the merits of the order at Annexure-1 is concerned, it has been submitted by Dr. Tripathy, learned counsel for the petitioner that there is absence of domestic relationship between the parties and that apart, the petitioner is having a family of his own and even though a decree of divorce was obtained against his wife, namely, respondent No.4 before the court of 1st instance and therefore, he could not have been directed to pay interim maintenance under the DV Act in favour of the opposite party. To counter the same, Mr. Singh, learned counsel for the opposite party submits that there has been a civil marriage between the petitioner and opposite party and it has been after the decree of divorce with ex-wife respondent No.4 and therefore, in view of the domestic relationship maintained between the two and negligence thereafter, as has been alleged by the opposite party, the learned J.M.F.C.(R) Cog. Berhampur rightly while considering such a plea for interim maintenance under Section 23 of the DV Act granted alimony for an amount of Rs.10,000/- as against a demand of Rs.40,000/- and the same has not been interfered with by the learned court below. 9. Any such plea of the petitioner regarding existence of a domestic relationship or otherwise and whether, the opposite party is entitled to maintenance and such other reliefs in the proceeding under Section 12 of the Act would have to be examined by the Court in appeal and in so far as the discretion exercised by the learned J.M.F.C.(R) Cog., Berhampur vis-a- Page 5 of 7 vis interim order of maintenance for an amount of Rs.10,000/-, according to Mr. Singh, learned counsel for the opposite party, it is perfectly justified and hence, should not be disturbed. It is claimed by the petitioner that the opposite party having independent source of income and hence, there was no need for any maintenance granted by the learned J.M.F.C.(R)Cog., Berhampur. The Court is not inclined to consider any such plea at present, since it is seisin over the matter and concerned with the legality of the impugned order dated 7th July, 2025 at Annexure-1 and not against any such final order in appeal and therefore, it shall have to be examined by the learned court below while dealing with the appeal considering the evidence in its entirety. Having said that, the Court is inclined to hold that the learned court below having exercised discretion in a manner not unreasonable directing the interim alimony in favour of the opposite party to continue, the Court is of the conclusion that it should not be tinkered with but subject to the decision in appeal. At the same time, the Court is inclined to direct the learned court below to ensure disposal of the appeal within a stipulated period considering all such plea of the petitioner raised therein as such a coercive action would serve the purpose and meet the ends of justice. 10. Accordingly, it is ordered. 11. In the result, the revision petition stands disposed of with the direction as aforesaid. It is directed that the learned Page 6 of 7 court below shall immediately take up hearing in Criminal Appeal No.73 of 2024 and to ensure its disposal at the earliest preferably within a period of fifteen days from the date of receipt of a copy of this order. As a necessary corollary, the impugned order dated 7th July, 2025 at Annexure-1 is affirmed for the reason stated hereinabove. It is further directed that the appeal shall be disposed of on merit without being influenced by any of observation made herein above. Consequently, the interim order of this Court in IA No.719 of 2025 is hereby vacated as a result. 12. Issue urgent certified copy of this order as per rules and in course of the day. (R.K. Pattanaik) Judge TUDU Signature Not Verified Digitally Signed Signed by: THAKURDAS TUDU Designation: Sr. Stenographer Reason: Authentication Location: OHC,CTC Date: 24-Oct-2025 17:31:11 Page 7 of 7