Maintenance can be awarded for children in utero under Section 125, provided legal criteria and evidence are sufficiently met.

JUDGMENT :

MRUGANKA SEKHAR SAHOO, J.

1. Both the RPFAM invoking Revisional Jurisdiction of this Court in matrimonial matters, arise out of judgment dated 26.11.2024 rendered in CRP No.41 of 2023 by the learned Judge, Family Court, Puri. In the RPFAM No.13 of 2025, filed by the husband, challenge is to the judgment as he opposes the grant of maintenance. In RPFAM No.375 of 2025 the wife in the marriage seeks enhancement of the maintenance awarded by the learned trial Court.

2. Heard learned counsel for the petitioner and counsel for the opposite party at length.

3. By the judgment dated 26.11.2024 the learned Judge, Family Court allowed petition filed U/s.125 Cr.P.C. (since repealed and parimateria provision being Section 144 of BNSS 2023) by the wife seeking maintenance of Rs.30,000/- per month for herself and the child in her womb when she filed the application. A total sum of Rs.2,000/- per month as maintenance was granted.

4. Though arising out of self same judgment, RPFAM No.375 of 2025 was not listed today. Since the matter is extensively heard and it is stated by the learned counsel for the petitioner-wife in RPFAM 375 of 2025 (and opposite party in the RPFAM No.13 of 2025) that the wife would not seek further enhancement of the maintenance as of now, the connected petition is directed to be listed by special notice and taken up on consent.

Memo of date is filed by the learned counsel for the opposite party in RPFAM No.13 of 2025 (Petitioner in RPFAM No.375 of 2025) indicating that for the present, the amount of maintenance awarded by the judgment dated 26.11.2024 is not sought to be enhanced.

5. Herein after, the reference to the parties in the litigations takes RPFAM No.13 of 2025 as the lead case where husband is the petitioner and the wife is the opposite party.

6. The learned counsel for the petitioner in RPFAM No.13 of 2025 on behalf of the husband in the marriage was heard in extenso. He addressed arguments being present at the Virtual Court, High Court of Orissa at Puri. He raises the following contentions:

(i) maintenance U/s.125 Cr.P.C. could not have been awarded for a child who was in womb when the petition was filed claiming maintenance.

(ii) in view of the judgment rendered by the Hon’ble Apex Court in Rajnesh v. Neha : 2020 INSC (63): (2021) 2 SCC 324 : AIR 2021 SC 569 : maintenance could not have been awarded for the wife as she has not filed her income and liability affidavit.

(iii) for exercising jurisdiction U/s.125 of Cr.P.C., the wife has to prove that she is unable to maintain herself and the minor child.

The legislative intent of enactment of 125 Cr.P.C. is that the wife must prove that she is unable to maintain herself; the learned counsel relies on the decision of the Hon’ble Supreme Court: Bhagawan Dutt v. Kamla Devi : AIR 1975 SC 83 : (1975) 2 SCC 386 .

(iv) The conclusion arrived at by the learned trial Court is not in consonance with the judgment rendered by this Court in Rama Chandra Sahu v. Smt. Tapaswini Sahu and another reported in 2007 (I) OLR 442.

7. To delve into the issue whether the child could have been awarded maintenance as the child was in womb when petition was filed, this Court has examined the judgment and all the materials on record in detail. Apparently, no such plea was raised in the pleadings or on the date of argument/hearing of the matter: 12.11.2024. It is noticed the marriage was solemnized on 09.07.2022 and by 12.11.2024 the child was already born. The petitioner before the learned trial Court did not make the unborn child a petitioner. It was stated in the petition that she is claiming maintenance for the child in the womb from the marriage.

8. The