Misc. Case No. 276 of 2014 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No. 523 of 2023 An application under Sections 397 of the Cr.P.C. read with Section 401 of the Code of Criminal Procedure challenging the order dated 16.09.2022 of learned J.M.F.C.(R), Rourkela in Misc. Case No. 276 of 2014 and the judgment dated 18.08.2023 of learned 2nd Additional Sessions Judge, Rourkela in Criminal Appeal No. 33 of 2022. Tirthajani Panda ..…. Petitioner -------------- -versus- Bibhuti Shankar Padhi --------------------------------------------------------------------------- For Petitioner : Mr. Anam Charan Panda, Advocate …… Opposite Party For Opp. Party : Mr. Soughat Dash, Advocate with Mr. Anupam Das, Advocate ---------------------------------------------------------------------------- CORAM: HON’BLE MISS JUSTICE SAVITRI RATHO JUDGMENT 23.12.2025 Savitri Ratho, J This Revision has been filed challenging the judgment dated 18.08.2023 passed by the learned 2nd Additional Sessions Judge, Rourkela in Criminal Appeal No. 33 of 2022 dismissing the appeal and confirming the order dated 16.09.2022 passed in Misc. Case No. 276 of 2014 by the learned Judicial Magistrate First Class (Rural), Rourkela (in short, “JMFC(R)”) rejecting the application of the Petitioner for striking off the defence of the Opposite Party CRLREV No. 523 of 2023 Page 1 of 17 on the ground that he has not complied with the order dated 02.12.2015 of the Court and not paid an amount of Rs.10,000/- per month towards interim maintenance allowance to the Petitioner (aggrieved person) within 15 days of every succeeding month. CASE OF THE AGGRIEVED PERSON 2. Petitioner is the wife of the Opposite Party, and their marriage was solemnized on 23.06.2010 at Shaktinagar, Kalyan Mandap as per the Hindu custom and rites and dowry articles etc. were given at the time of marriage. Soon after the marriage, she was ill-treated by the Opposite Party and his family members, demanding further dowry. Her pregnancy got terminated due to assault by the Opposite Party. Intervention of the family members became fruitless and finally the Petitioner prosecuted her study at Sambalpur University in Sociology, on the proposal of the Opposite Party that he would bear her educational expenses. Believing such commitment, she continued her Post Graduate Course but the Opposite Party only paid Rs 3,000/- although he had made commitment to pay the entire educational expenses. In the meantime, the Opposite Party filed a divorce suit vide CP No. 151 of 2014 in the Family Court, Rourkela on false allegations. CRLREV No. 523 of 2023 Page 2 of 17 The Petitioner also alleged that the Opposite Party is having illicit relationship with another lady. 3. The Petitioner filed CRLMC No. 276 of 2014 in the Court of the learned JMFC(R) under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (in short, “PWDV Act”). The Petitioner entered appearance on 12.12.2014, filed his show cause but thereafter was set ex-parte as he did not take any steps. The Petitioner filed an application seeking for payment of interim maintenance allowance from the Opposite Party. INTERIM MAINTENANCE ORDER 4. On 02.12.2015, the learned JMFC(R), keeping in view the residential situation of the Petitioner and the expenses with regard to her study passed an ex-parte order directing the Opposite Party to pay an amount of Rs.10,000/- per month in favour of the Petitioner towards interim maintenance. It was also directed that the allowances shall be paid by the Opposite Party, to the aggrieved person (Petitioner) within 15 days of every succeeding month. 5. Thereafter, by ex parte judgment dated 01.10.2016 the learned J.M.F.C(R) disposed of the CRLMC No. 276 of 2014 finally, directing the Opposite Party to pay Rs.10,000/- per month CRLREV No. 523 of 2023 Page 3 of 17 towards the educational and other expenses of the Petitioner for a period of 18 months to complete her M. Phil course. The learned JMFC(R) also directed the Opposite Party to pay a compensation of Rs.50,000/- to the Petitioner for the mental agony caused to her due to the acts of domestic violence by the Opposite Party, respondent therein. APPELLATE COURT JUDGMENT 6. The Opposite Party preferred an appeal challenging the judgment dated 01.10.2016 in the Court of the learned 1st Additional Sessions Judge, Rourkela vide Criminal Appeal No.12/2017. The learned Appellate Court set-aside the ex-parte judgment dated 01.10.2016 and directed the Opposite Party to deposit a sum of Rs.50,000/- (Rupees fifty thousand) only before the learned Trial Court on or before 11.09.2017. But as the Opposite Party failed to comply the said order dated 06.09.2017 the learned JMFC(R)issued NBW as well as distress warrant against him on 06.12.2019 in Misc. Case No.33/2017 filed by the Petitioner for execution. The Opposite Party preferred appeal in the Court of the 1st Additional Sessions Judge, Rourkela vide Criminal Appeal No.01 of 2020 and pursuant to order dated 06.12.2019 of the learned Appellate Court, the Opposite Party deposited CRLREV No. 523 of 2023 Page 4 of 17 Rs.65,000/- (Rupees sixty-five thousand) only and participated in the proceeding in the Court of the learned JMFC(R). APPLICATION OF THE PETITIONER 7. The Petitioner filed an application in Misc. Case No. 276 of 2014 before the learned Court of J.M.F.C on 25.07.2022 praying inter alia to strike off the defence of the Opposite Party and to proceed with the proceeding in accordance with law as the Opposite Party had failed to deposit monthly maintenance and arrear maintenance amounting to more than Rs. Seven lakhs as per direction of the learned J.M.F.C(R) dated 02.12.2015. Objection was filed by the Opposite Party to the application. ORDER OF THE MAGISTRATE 8. On 16.09.2022, the learned JMFC(R) dismissed the application, rejecting the prayer of the Petitioner for striking off the defence of the Opposite Party, observing as under; “…..It shows that the O.P. has complied all the direction of the Appellate Court in continuing this proceeding and the willful neglect as pleaded by the Petitioner is not substantiated specifically after the setting aside of the Judgment dated 01/10/2016. So, this court feels that if the defence from the side of the O.P. will be struck off then it will cause prejudice to the O.P. So, as the respondent is sufficiently CRLREV No. 523 of 2023 Page 5 of 17 followed all the directions of this court so the decision cited by the Ld. Counsel of the Petitioner is not applicable to the facts and circumstances to this case. Accordingly, the petition filed by the Ld Counsel of the Petition stands rejected. Put up on 27.09.2022 for cross-examination of the Petitioner by the Ld counsel of the Respondent.” ORDER OF THE APPELLATE COURT 9.
Legal Reasoning
The Petitioner challenged the order passed by the learned J.M.F.C, by filing Criminal Appeal No. 33 of 2022 in the Court of the learned 2nd Additional Sessions Judge, Rourkela. 10. The learned Appellate Court did not find any irregularity or illegality in the order of the learned J.M.F.C and confirmed the order dated 16.09.2022 passed by the J.M.F.C in Misc. Case No. 276 of 2014 and dismissed the appeal on 18.08.2023. ORDER OF THIS COURT 11. While issuing notice in this Criminal Revision, on 18.10.2023, this Court had called for the LCR and stayed further proceedings in Misc. Case No. 276 of 2014 in the Court of the learned J.M.F.C till disposal of the revision. CRLREV No. 523 of 2023 Page 6 of 17 SUBMISSIONS 12. I have heard learned counsel for the Parties, perused the written note of submission and the records. 13.
Legal Reasoning
Mr. A.C. Panda, learned counsel for the Petitioner has submitted that the Petitioner is a distressed woman, having no means of livelihood whereas the Opposite Party has sufficient means but he is not paying any maintenance to the Petitioner in spite of the direction of the learned JMFC(R) passed on 02.12.2015. He also submitted that the Petitioner has been subjected to domestic violence, and is a leading a miserable life. He further submitted that the Opposite Party has only paid Rs.65,000/- pursuant to order dated 21.12.2020 of the learned Appellate Court. He further submitted that the Opposite Party is an able bodied man and is getting profit of Rs.70,000/- per month from his spare parts shops namely Subham Auto and Punam Auto situated at Koira Bazar. Besides that, he is getting Rs.10,000/- from DPS School and Rs.15,000/- from house rent, so there is no reason as to why he should not pay monthly maintenance to the Petitioner. Mr. Panda, learned counsel relied on the following decisions in support of his submission that the defence of the Opposite Party should be struck off for non-payment of monthly maintenance: CRLREV No. 523 of 2023 Page 7 of 17 (i) Rajnesh vs. Neha and another : (2021) 2 SCC 324; (ii) Experion Developers Private Limited vs. Himanshu Dewan, Sonali Dewan and others : 2023 INSC 748 : 2023 LiveLaw (SC) 674; and (iii) Kusheswar Prasad Singh vs. State of Bihar and Ors. (2007) 11 SCC 447: AIR 2007 SCW 1911. (iv) Nishant vs. Sonia in Criminal Revision No. 45 of 2013 decided on 27.08.2013 by the Bombay High Court (Nagpur bench). 14. Mr. S. Dash, learned counsel for the Opposite Party prayed for the dismissal of the Criminal Revision Petition, submitting that the Opposite Party has deposited a sum of Rs 65,000/- in compliance with the judgment of learned appellate court. He contended that the initial ex-parte interim order dated 02.12.2015, directing the Opposite Party to pay Rs.10,000/- per month had merged with the judgment dated 01.10.2016 directing for payment of maintenance of Rs.10,000/- for a period of eighteen months and compensation of Rs.50,000/-. This ex-parte judgment had been set aside by the Appellate Court directing the Petitioner to deposit an amount of Rs.50,000/-. This amount was subsequently enhanced to Rs.65,000/- by the Appellate Court, which has been CRLREV No. 523 of 2023 Page 8 of 17 paid by the Opposite Party. The learned JMFC(R) has rightly considered all relevant aspects while rejecting the prayer of the Petitioner to strike off the defence of the Opposite Party. This order has been rightly confirmed by the Appellate Court. The two orders/judgments do not call for any interference. He relied on the following decisions in support of his submission– (i) Prem Chandra Agarwal and anr. vs. UP Financial Corporation and Ors. reported in (2009) 11 SCC 479 and (ii) Sunil Kumar vs. State of Kerala reported in 2013 SCC OnLine Kerala 24442. 15. Mr. Anupam Das, learned counsel who had been requested to assist the Court has cited the decision of the Kerala High Court in the case of Neethu vs. Trijo Joseph in OP(Crl.) No. 226 of 2022 decided on 16th June 2022. JUDICIAL PRONOUNCEMENTS 16. In the case of Rajnesh (supra), the Supreme Court has inter alia held that for non-payment of interim maintenance, the defence of the respondent is liable to be struck off. CRLREV No. 523 of 2023 Page 9 of 17 In the case of Experion Developers Private Limited vs. Himanshu Dewan, Sonali Dewan (supra), the Supreme Court considered the doctrine of merger and held as follows: “(iii) The doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger........” In the case of Kusheswar Prasad Singh (supra), the Supreme Court has held that:- “It is settled principle of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non- performance he has occasioned. To put it differently, "a wrong doer ought not to be permitted to make a profit out of his own wrong". In the case of Nishant (supra), the Bombay High Court held that where the husband had claimed that after filing the written statement, he was unaware of the next date, he was directed to pay interim maintenance and clear the arrear maintenance. CRLREV No. 523 of 2023 Page 10 of 17 In the case of Prem Chandra Agarwal (supra), the Supreme Court held in paragraph 3 as under:- “3.It is a well-settled principle that once a final order is passed, all earlier interim orders merge into the final order, and the interim orders cease to exist. In this appeal, since the final order has been passed by the High Court, obviously all interim orders passed by the High court in the same writ petition cease to exist automatically. Consequently, any direction given in the interim order dated 24.4.2004 also ceases to exist. In view of the final order passed by the High Court, the impugned interim order and any direction therein have ceased to exist. The appeal has become infructuous and is, accordingly, dismissed.” In the case of Sunil Kumar (supra), the Kerala High Court held that :- “10. The present application, bn which the impugned order was passed, was one for realisation of arrears of maintenance defaulted by the Revision Petitioner before the passing of final order in appeal. Put it differently, that is the amount due to the 2nd respondent for a period in which the Revision Petitioner disobeyed the earlier interim order passed by the Magistrate Court. Now he is claiming benefit of the Appellate Court judgment for the defaulted period also, which can never be allowed. The final judgment passed in appeal has CRLREV No. 523 of 2023 Page 11 of 17 prospective operation only. The learned Magistrate erroneously found that rate fixed by the Appellate Court is applicable to a period anterior to that judgment also. The order under challenge passed by the Magistrate Court will merge in the judgment of the Appellate Court on the date of judgment only. It cannot be applied to a period anterior to that judgment unless it is otherwise specifically provided in that judgment. Here, the judgment under challenge does not provide otherwise. So, he should have paid maintenance at the rate specified in interim order for the period in which that interim order was in force. He cannot claim benefit of the judgment passed in appeal retrospectively for the arrear of the defaulted period, in which interim order was in force. If the argument advanced by the Revision Petitioner is accepted, it will give undue advantages to the Revision Petitioner, who was found contumacious all along the proceedings, despite the interim order and final order. His contumaciousriess cannot be justified under the cover of Appellate Court judgment.” In the case of Neethu (supra), the Kerala High Court held in paragraph 12 as under:- “12. The Apex Court in Rajnesh v. Neha and Another (2020 (6) KHC 1) referring to the judgments of the High Court on the point upheld the CRLREV No. 523 of 2023 Page 12 of 17 power of the court to strike off the defence if there was non-compliance with the order of payment of maintenance. It was, however, held that striking off the defence is an order which ought to be passed in the last resort, if the court finds default to be wilful and contumacious, particularly to a dependent unemployed wife and minor child. The Division Bench of this Court recently in Shyju v. Nadeera (2021(5) KLT 693) has held that the Family Court can strike off the defence on failure to pay interim maintenance ordered by the court where the default is found to be wilful. For all these reasons, I hold that in a proceeding under the DV Act, the defence can be struck off for non-compliance with an order of payment of pendente lite maintenance if the default is found to be deliberate and wilful. However, such an order ought to be passed only as a last resort as held in Rajnesh (supra).” As pointed out by Lord Russel C.J. in Reg. vs. Senior and affirmed by Cave L. C. in Tamboli vs. G.l.P. Railway, „wilfully‟ means that: “the act is done deliberately and intentionally, not by accident or inadvertence, but so that the mind of the person who does the act goes with it”. Thus, striking off a defence is justified only when: i) There is clear and persistent disobedience of court orders, CRLREV No. 523 of 2023 Page 13 of 17 ii) The conduct is deliberate and contumacious, iii) There is no other effective remedy to secure compliance. ANALYSIS AND CONCLUSION 17. From a reading of the decisions referred to above , it is apparent that in matrimonial cases, defence of a party( usually the husband) can be struck off for non-compliance of the order to pay maintenance, if non-compliance is found to be willful and contumacious. But such an order should be passed, as a last resort as it is a drastic step and only after affording the party concerned a chance to comply with the order for payment of maintenance. 18. The legal position is also settled that a litigant cannot take advantage of his own wrong. 19. After hearing learned counsel for the Parties, perusing the records and the decisions relied on by the parties, I am satisfied that the interim order dated 02.12.2015 had merged with the final order dated 01.10.2016 passed in Misc. Case No. 276 of 2014. The final order was set aside by the learned Additional Sessions Judge in Criminal Appeal No. 12 of 2017 filed by the Opposite Party permitting him to participate in the proceedings after depositing Rs.50,000/-. This amount was increased to Rs 65,000/- as the CRLREV No. 523 of 2023 Page 14 of 17 Opposite Party did not deposit Rs 50,000/- in time. The amount of Rs.65,000/- has been deposited / paid by the Opposite Party. I am therefore unable to accept the submission of the learned counsel for the petitioner that the Opposite Party has defaulted in payment of interim maintenance for which his defence should be struck off. So I do not find any infirmity or illegality in the order dated 16.09.2022 passed in Misc. Case No. 276 of 2014 by the learned JMFC(R) or the order dated 18.08.2023 passed in Criminal Appeal No. 33 of 2022 by the learned 2nd Additional Sessions Judge, Rourkela. 20. But after hearing the learned counsel and perusing the records, I find that the proceedings under Section 12 of the PWDV Act is still pending on account of the default in appearance of the Opposite Party. On account of his default in appearance, ex parte order to pay interim maintenance had been passed and thereafter ex parte final judgment had been passed. This judgment was set aside in an appeal filed by the Opposite Party. He was allowed to participate in the proceedings on depositing Rs 50,000/-. But he did not deposit the amount within the time fixed for which warrant had been issued against him and the amount to be deposited by him was increased to Rs 65,000/-. This amount has been deposited by him. CRLREV No. 523 of 2023 Page 15 of 17 But this Court cannot allow him to take advantage of his own wrong(default) in paying interim maintenance to the Petitioner. 21. At the time of filing of the case under Section 12 of the PWDV, the Petitioner had claimed to be distressed woman with no independent means of livelihood and means to pursue her studies. She had complained of being subjected to mental and physical suffering due to domestic violence. So the learned JMFC(R) is directed not to grant unnecessary adjournments and is requested to make an endeavour to dispose of the proceeding within a period of six months of receipt of certified copy of this judgment. The parties are directed to co-operate for expeditious disposal of the proceeding. 22. As the Opposite Party cannot be allowed to benefit from his own wrong and thereby deprive the Petitioner from interim maintenance, it is, therefore, directed that the Opposite Party shall pay monthly interim maintenance to the Petitioner with effect from January 2026. The amount is to be paid by the 7th of each succeeding month. The Opposite Party shall also deposit an amount of Rs.50,000/- within a period of four months towards arrear maintenance which shall be released in favour of the Petitioner. CRLREV No. 523 of 2023 Page 16 of 17
Decision
23. If the proceedings are not disposed of within a period of six months, payment of monthly maintenance beyond the period of six months will be subject to the satisfaction of the learned JMFC (Rural), Rourkela that the Petitioner is not responsible for the delay in disposal of the proceeding. 24. The Criminal Revision is disposed of with the aforesaid observation. 25. Copy of this judgment be communicated to the learned JMFC(Rural), Rourkela forthwith. ……………………… (Savitri Ratho) Judge Orissa High Court, Cuttack. Dated, the 23rd December, 2025 . Subhalaxmi, Junior Stenographer. Signature Not Verified Digitally Signed Signed by: SUBHALAXMI PRIYADARSHANI SAHOO Reason: Authentication Location: Orissa High Court, Cuttack Date: 25-Dec-2025 20:25:45 CRLREV No. 523 of 2023 Page 17 of 17