IN THE HIGH COURT OF ORISSA AT CUTTACK RPFAM No.338 of 2024 (In the matter of an application Under Section 19(4) of the Family Court, 1984, r/w Section-528 of the BNSS)

Shrutisudha Nayak and …. Petitioners another -versus-

Abhijit Nayak …. Opposite Party For Petitioners : Mr. B.P.B. Bahali, Advocate For Opposite : Mr. A.P. Bose, Advocate Party CORAM:

JUSTICE G. SATAPATHY DATE OF HEARING : 30.04.2025 DATE OF JUDGMENT: 07.05.2025 G. Satapathy, J.

1. This revision is directed against the impugned judgment dated 07.05.2024 passed by the learned Judge, Family Court, Cuttack in CrP. No. 83 of 2011 directing the present OP-husband/father to pay to the Petitioner No.2-cum-daugther a sum of Rs. 2,000/- per month w.e.f 05.02.2011 till 06.05.2024 and Rs. 5,000/- per month w.e.f 07.05.2024 till she attains majority towards her maintenance while refusing to grant any maintenance to Petitioner No.1-cum-wife in an application U/S. 125 of the CrPC.

2. Heard, Mr. Biplab B. Bahali, learned counsel for the Petitioners and Mr. Amit Prasad Bose, learned counsel for OP in the matter and perused the record.

3. Admittedly, the relationship between the parties is not in dispute, but the refusal of maintenance to the wife and quantum of maintenance to daughter are under challenged in this revision. A careful scrutiny of the impugned order would go to reveal that the maintenance to wife has been refused on the ground of non-compliance of the decree of restitution of conjugal rights which is apparent from the following finding of the learned trial Court.

“6. xxx xxx xxx it is well proved that she is well aware about the order of restitution of conjugal rights passed against her, but she has willfully disobeyed the order passed by this court. She also admits that she has not filed W.S. in C.P. 585/2010(A proceeding for restitution of conjugal rights) stating about the facts regarding torture inflicted upon her by her husband and in-laws. So, it is proved that she has deserted her husband and refuses to live with him without sufficient reason.”

Whether a husband would be stood absolved from paying maintenance to his wife, if such wife refuses to abide by a decree of restitution of conjugal rights to return to her matrimonial home, but such question has been answered by the Apex Court in Rina Kumari @ Rina Devi @ Reena Vrs. Dinesh Kumar Mahto @ Dinesh Kumar Mahato and another; (2025) SCC Online SC 72 by observing that the mere presence of a decree for restitution of conjugal rights was, therefore, held insufficient to disentitle a wife from claiming maintenance, if the conduct of the husband is such that she is unable to obey such a decree or if the husband creates such circumstances that she cannot stay with him.

4. The embargo created U/S. 125(4) of the CrPC disentitling the wife from getting maintenance is applicable, if it is established by the husband that the wife has deserted him without sufficient cause, but non-compliance of a decree of restitution of conjugal rights obtained by the husband per se is not sufficient to attract the disqualification as contemplated U/S. 125(4) of the CrPC which would further required to be established that the wife voluntarily withdrew from the Company of the husband without any sufficient cause. What constitutes sufficient cause is dependent on facts and circumstances of each case and it could be decided on the strength of the materials and evidence produced by the parties. However, the wife can still establish that she has valid/sufficient reason to refuse to live with her husband despite a decree of restitution of conjugal rights. It is, therefore, very clear that the decree of restitution of conjugal rights obtained by the husband coupled with its non-compliance by the wife would not be sole determinative factor to disentitle her from getting maintenance, but the husband is further required to establish that the wife has in fact no valid/sufficient reason to live separately to absolve him from the liability of paying mai