IN THE HIGH COURT OF ORISSA, CUTTACK

RPFAM No.260 of 2017

Kakhashan Khan ....... Petitioner

-Versus-

Gayasuddin Khan ....... Opposite Party

RPFAM No.293 of 2017

Gyasuddin Khan @

Gayasuddin Khan

....... Petitioner

-Versus-

Kahkashan Khan ....... Opposite Party

Advocate for the parties

For Petitioner : In Person

(In RPFAM No.260 of 2017)

For Petitioner : Mr. S.K. Mohanty,

(In RPFAM No.293 of 2017) Advocate

For Opposite Party : Mr. S.K. Mohanty,

(In RPFAM No.260 of 2017) Advocate

For Opposite Party : In Person

(In RPFAM No.293 of 2017)

----------------------------

CORAM: JUSTICE SANJAY KUMAR MISHRA

-------------------------------------------------------------------------------

Date of Hearing: 28.10.2025 Date of Judgment: 20.01.2026

-------------------------------------------------------------------------------

RPFAM Nos.260 & 293 of 2017 Page 2 of 48

S.K. Mishra, J. The present common judgment arises out of two

revision petitions i.e., RPFAM No.260 of 2017 preferred by

the divorced Muslim woman (hereinafter referred as the

Petitioner), and RPFAM No.293 of 2017 preferred by the ex-

husband (hereinafter referred as the Opposite-Party), both

challenging the order dated 07.10.2017 passed by the

learned Judge, Family Court, Bhubaneswar, in Criminal

Proceeding No.121 of 2016.

2. Vide the said order dated 07.10.2017, the

amount of maintenance was enhanced by the learned Court

below from Rs.3000/- to Rs. 8,100/- in an application filed

by the Petitioner U/s 127 of CrPC. While the Petitioner

seeks enhancement of the maintenance awarded to her as

being inadequate and disproportionate to the Opposite

Party’s income, the Opposite Party assails the said order as

excessive, unsustainable and without jurisdiction.

3. The undisputed facts, as borne out of the

records, are that the marriage between the Opposite Party,

who is the Petitioner in RPFAM No.293 of 2017, and the

Petitioner, who is the Opposite Party in RPFAM No.293 of

2017, was solemnized on 11.04.1993 according to Muslim

RPFAM Nos.260 & 293 of 2017 Page 3 of 48

rites and customs. After about six months of the marriage,

the Petitioner joined the Opposite Party at his place of

posting at Jajpur Road, where they resided together as

husband and wife. Out of their wedlock, a son namely,

Asad Khan was born on 29.09.1995. In the year 1999, the

Opposite Party was transferred to Bhubaneswar, where the

couple continued to live together with their son.

3.1. However, marital discord arose between them.

On 27.10.2003 serious matrimonial disputes led to the

Petitioner leaving the matrimonial home. Subsequently, on

03.11.2003, the Opposite Party pronounced talaq upon the

Petitioner, thereby dissolving the marriage. Shortly

thereafter, i.e., on 12.11.2003, the Opposite Party alleged

that Petitioner and her son forcibly entered his house at

Bhubaneswar and began residing there, thereby

dispossessing him from the said house. On the same day

he lodged an FIR alleging offences of criminal trespass and

intimidation. G.R. Case No. 3953 of 2003, on which the

Police submitted a charge-sheet, remains pending before

the competent Court. Whereas the Petitioner lodged FIR

No.90 of 2004 against the Opp. Party for the alleged

RPFAM Nos.260 & 293 of 2017 Page 4 of 48

offences U/s 498(A), 506, 34 of I.P.C. so also C.S

No.115/2008 before the learned Civil Judge (Senior

Division), Bhubaneswar to restrain the Opposite Party by

injunction not to evict her from the house At-Patia, P.S-

Infocity, Bhubaneswar, with a Counter Claim by the

Opposite Party to evict her from the said house.

3.2. Following the dissolution of marriage, the

Petitioner filed C.M.C. No.61 of 2004 before the learned

S.D.J.M., Bhubaneswar under Section 3(2) of the Muslim

Women (Protection of Rights on Divorce) Act, 1986, shortly,

“the Act, 1986”, claiming monthly maintenance of ₹5,000/-

for herself and ₹2,000/- for her son. By order dated

29.07.2006, the learned Magistrate directed payment of

maintenance of ₹1,500/- per month to each of them. Being

aggrieved thereby, the Opposite Party preferred Criminal

Revision No.751 of 2006 before this Court. In the said

Criminal Revision, the issue was scope of a Muslim

husband’s liability post-divorce under the Act, 1986, so

also maintainability of such application under Section 3(2)

of the Act, 1986, vide which a prayer for maintenance of the

minor child was also entertained by the learned Court

RPFAM Nos.260 & 293 of 2017 Page 5 of 48

below. But, in absence of reasonable and fair provisions of

maintenance in favour of Muslim minor children under the

Act, 1986, the Opposite Party was directed to provide

maintenance under section 125 Cr.P.C. in favour of his

minor son. Vide judgment dated 03.02.2009, this Court

dismissed the Revision Petition preferred by the Opposite

Party and upheld the order passed by the learned S.D.J.M.,

Bhubaneswar. This Court held that a Muslim husband’s

liability extends beyond the iddat period and includes

making of fair and reasonable provisions for his divorced

wife’s future. It was also reaffirmed that a father must

maintain his minor children irrespective of his religion.

3.3. However, the Petitioner initiated an execution

proceeding before the learned SDJM, Bhubaneswar for

execution of order passed in CMC No. 61 of 2004. The

Opposite Party, despite due notice, neither appeared in the

said case nor paid any maintenance as ordered in the said

case. Hence, in the execution proceeding the Learned

S.D.J.M., Bhubaneswar directed to make salary attachment

of Opposite Party and remittance of maintenance amount to

RPFAM Nos.260 & 293 of 2017 Page 6 of 48

the Petitioner’s bank account. Consequently, the Opposite

Party preferred W.P.(Crl.) No.372 of 2009 before this Court

against the order for the salary attachment passed by the

learned S.D.J.M., Bhubaneswar vide Order dated

13.04.2009 and Order dated 14.05.2009 passed in CMC

No.61 of 2004.

3.4. In W.P.(Crl.) No.372 of 2009, which was decided

on 23.12.2009, the issue was mode of enforcement of

maintenance orders to the Petitioner and her minor son.

This Court upheld the validity of enforcing a finalized

maintenance order under Section 125 Cr.P.C. through

salary deduction, directly to be paid into the account of the

Petitioner.

3.5. However, the Opposite Party, who was directed

by the learned S.D.J.M., Bhubaneswar to pay Rs.3000/-

per month to his divorced wife and son via salary

attachment, expressed his willingness to make direct bank

transfers instead. Considering such prayer, this Court

allowed the Opposite Party to pay Rs.3000/- per month

through standing instruction to his bank, effective from

RPFAM Nos.260 & 293 of 2017 Page 7 of 48

03.02.2009, and directed the learned S.D.J.M. to determine

arrears separately.

3.6. Subsequently, the Petitioner filed C.M.C. No.141

of 2009 to enhance her maintenance. The learned Judge

Family Court, Bhubaneswar, exercising its powers under

Section 127 Cr.P.C., enhanced the maintenance from

₹l,500/- to ₹3,000/- per month each for the Petitioner as

well as her son on 25.02.2011. The Opposite-Party

challenged the said order before this Court in RPFAM

No.105 of 2011, wherein the issue was jurisdiction of the

Family Court to enhance maintenance under the Act,

1986.Ultimately, RPFAM No.105 of 2011 was dismissed on

25.02.2015, affirming the said order passed in C.M.C.

No.141 of 2009. This Court held that, under Sections

7(1)(f) and 20 of the Family Courts Act, 1984, the Family

Court has jurisdiction to decide and enhance maintenance

under Section 3(2) of the Act, 1986, which can be enhanced

considering inflation and changed circumstances. The

enhancement to Rs.3000/- to each was found justified.

However, in view of the provisions under Section 125(1)(b)

RPFAM Nos.260 & 293 of 2017 Page 8 of 48

Cr.P.C., this Court directed that the son’s maintenance

would continue till he attains majority.

3.7. Furthermore, the Petitioner once again

approached the Family Court, Bhubaneswar by filing

Criminal Proceeding No.121 of 2016 under Section 127

Cr.P.C, seeking enhancement of maintenance from

₹3,000/- to ₹35,000/- per month, citing escalation in living

costs, her dependent condition and the considerable

increase in the Opposite- Party’s salary, following

implementation of the Seventh Pay Commission. In

Cr.P.No.121 of 2016 the issue was enhancement of

maintenance on account of changed circumstances. The

learned Judge, Family Court, Bhubaneswar, upon hearing

both sides and after perusal of records, rejected the

Opposite Party’s objection regarding maintainability and

jurisdiction, holding that the proceeding, being one under

Section 127 Cr.P.C., is maintainable as maintenance is a

continuing relief liable to variation upon change in

circumstances.

3.8. Taking judicial notice of the substantial increase

in the cost of living, inflation and the enhanced income of

RPFAM Nos.260 & 293 of 2017 Page 9 of 48

the Opposite Party, who is serving in the Oriental Insurance

Company drawing a basic salary of around ₹52,000/- per

month, apart from DA, the learned Judge, Family Court,

Bhubaneswar found the earlier maintenance of ₹3,000/-

per month to be grossly inadequate. Even though it was

noted that the Son, namely Asad khan, had become major

and had completed his B.Tech degree years back, but the

Court was of the view that still it cannot be presumed that

he is getting very high salary with a meager experience, in

absence of any conclusive evidence to prove his actual

income. Accordingly, the learned Court below, vide the

impugned order dated 07.10.2017, enhanced the

maintenance payable to the Petitioner from ₹3,000/- to

₹8,100/- per month, effective from the date of filing the

petition, i.e., 05.07.2016, with an observation/direction for

adjustment of amount already paid and for clearance of

arrears in four equal monthly installments. Hence, these

Revision Petitions.

3.9. Furthermore, as is revealed from the records,

Cr.P No.164 of 2013 was preferred by the Petitioner for

recovery of study expenses of Rs.8,00,000/-( Eight lakhs

RPFAM Nos.260 & 293 of 2017 Page 10 of 48

only) for her son from the Opposite Party before the learned

Judge Family Court, Bhubaneswar. The learned Judge

Family Court, Bhubaneswar directed for payment of

₹8,00,000/- towards the son ’s B.Tech educational

expenses. The said order was challenged in RPFAM No.16

of 2018 by the Opposite Party. In RPFAM No.16 of 2018 the

issue was whether a father is legally bound to bear the

educational expenses of a son who attains majority during

the continuance of his studies and has no independent

source of income. This Court dismissed the petition of the

Opposite Party vide judgment dated 08.04.2019. It was held

that a strict interpretation of the date of majority as a cut-

off date may force a child to abandon studies and face

hardship; therefore, a father is duty-bound to provide

maintenance until the completion of the son’s or daughter’s

education. Emphasizing on the remedial and welfare

oriented nature of maintenance, this Court upheld the said

order and directed payment of the remaining ₹3,50,000/- in

four quarterly installments.

4. The Petitioner, who was appearing in person

before this Court, having no experience and exposer in

RPFAM Nos.260 & 293 of 2017 Page 11 of 48

Court practice and procedure and no legal knowledge, this

Court, vide order dated 25.09.2025, allowed her son Asad

Khan, who is a B-Tech Engineer and accompanying her on

each and every date of hearing, to assist her so also assist

this Court during hearing of the cases.

5. Reiterating the grounds urged in the petition, it

was submitted by Mr. Asad that the impugned order of the

learned Judge, Family Court, Bhubaneswar, enhancing the

maintenance to ₹8,100/- per month, though an

improvement upon the meager amount of ₹3,000/- earlier

granted, remains grossly insufficient to meet the

Petitioner’s basic needs as per the present cost of living, her

age, and her medical condition. She is now about 56 years

old, suffering from multiple ailments, and entirely

dependent on the monthly maintenance as she has no

source of independent income. Owing to persistent

inflation, her advancing age, and rising living costs, the

Petitioner had sought further enhancement of

maintenance, invoking Section 127 Cr.P.C. Mr. Asad

submitted, the Family Court, after due consideration,

though enhanced the maintenance to ₹8,100/- per month,

RPFAM Nos.260 & 293 of 2017 Page 12 of 48

such modest enhancement does not adequately reflect the

Opposite Party’s financial capacity, who is presently

serving as the Divisional Manager in the Oriental

Insurance Company Limited, drawing a monthly salary of

over Rupees One Lakh.

5.1. It was further submitted by Mr. Asad that, he

as well as his mother, i.e., the Petitioner, continue to reside

in the residential premises situated at Plot

No.516/1678/2869, Adarsh Vihar, Bhubaneswar, which

was allegedly purchased and constructed with his mother’s

parental funds, but was fraudulently registered in his

father’s name. The said property is the subject matter of

dispute in Civil Suit No.115 of 2008, pending before the

competent Civil Court. It was denied that the Petitioner

earns rental income or runs a profitable beauty parlour,

holding that her fragile health and limited means prevent

her from engaging in any gainful occupation.

5.2. It was also argued that the Act, 1986, read

harmoniously with Sections 125, 126 and 127 Cr.P.C.,

ensures that a divorced woman is not rendered destitute,

and that maintenance is a continuing relief, subject to

RPFAM Nos.260 & 293 of 2017 Page 13 of 48

alteration with change in circumstances. The moral and

legal duty of the divorced husband persists despite his

remarriage, particularly when his financial position has

improved substantially. In light of these facts, it was prayed

for a further enhancement of maintenance to at least one-

third of the Opposite- Party’s monthly salary, or

alternatively, for grant of a permanent alimony

commensurate with Opposite Party’s income and lifestyle,

to be deposited directly into the Petitioner’s bank account

for her lifelong sustenance.

5.3. It was further argued that the Opposite Party,

being a Deputy Manager, who is now allegedly promoted to

the post of Divisional Manager in the Oriental Insurance

Company Ltd., is earning over ₹1,00,000/- per month,

apart from other benefits and having ancestral agricultural

property in Village Oldhi, District Kendrapara and is fully

capable of meeting the proposed settlement without

hardship. Accordingly, it was prayed to pass a

comprehensive order of settlement ensuring her financial

security, dignity and independence for the remainder of her

life.

RPFAM Nos.260 & 293 of 2017 Page 14 of 48

5.4. It was argued by Mr. Asad that, in C.M.C.

No.61 of 2004, relying on Daniel Latifi & Another V.

U.O.I, reported in (2001) 7 SCC 740, the learned Court

below held that a Muslim husband’s liability extends

beyond the iddat period. Further, relying on the judgment

in Noor Saba Khatun v. Mohd. Quasim , reported in

(1997) 6 SCC 233, Rs. 1,500/- each was awarded as

monthly maintenance in favour of the Petitioner as well as

himself, then he being a minor, under Section 125 CrPC.

The Order was upheld by this Court in C.R.P. No.751 of

2006, despite taking a stand by the Opposite Party that the

learned Court below was incompetent to pass such an

order. Later, in C.M.C. No.141 of 2009, the Petitioner

sought for enhancement of maintenance under Section 127

CrPC, which was renumbered as CrP No.36 of 2011, being

transferred to the Court of learned Judge, Family Court,

Bhubaneswar. The learned Judge, Family Court allowed

such application, treating the earlier order as one under

Section 125 CrPC. The order was again upheld by this

Court in RPFAM No. 105 of 2011 affirming the Court’s

power to enhance maintenance considering the rise in cost

RPFAM Nos.260 & 293 of 2017 Page 15 of 48

of living and change in circumstances. Hence, it is no more

open to the Opposite Party to take the selfsame ground to

assail the impugned order.

5.5. Moreover, the Petitioner has relied upon a recent

judgment of the Supreme Court in Mohd. Abdul Samad v.

State of Telangana, reported in (2025) 2 SCC 49, wherein

it was held that a divorced Muslim woman has the option to

seek relief under either the Act, 1986 or Section 125 of

Cr.P.C., or both, as the 1986 Act is not in derogation, but

in addition to Section 125 Cr.P.C. It was further clarified

vide the said judgment that maintenance must be

reasonable and sufficient, not minimal. Hence, it was

argued that the Opposite Party, who is now serving as

Regional Manager at Oriental Insurance Company,

Bhubaneswar, has sufficient means to comply with the

enhanced maintenance order.

6. Per contra, learned Counsel for the Opposite-

Party submitted that the impugned order of enhancement

is primarily on grounds of jurisdiction and proportionality

vide RPFAM No. 293 of 2017. It was submitted that the

original maintenance order was passed under Section 3(2)

RPFAM Nos.260 & 293 of 2017 Page 16 of 48

of the Act, 1986 in C.M.C. No. 61 of 2004. Therefore,

recourse to Section 127 Cr.P.C. for further enhancement is

legally impermissible, since the provisions of Cr.P.C apply

only where both parties have expressly opted for the same

by filing a declaration, as required under Section 5 of the

1986 Act ,which, in this case, was never done.

6.1. It was further argued that, the 1986 Act provides

a distinct and self-contained scheme governing the rights of

a divorced Muslim woman. Under Section 4 of the said Act,

1986 post-divorce maintenance is chargeable not upon the

former husband but upon her relatives or, failing them,

upon the State Wakf Board. Accordingly, it was argued that

the impugned enhancement, passed under Section 127

Cr.P.C., is without jurisdiction and liable to be set aside.

6.2. It was also argued that the Petitioner resides in

the residential house of the Opposite-Party at Adarsh Vihar,

Bhubaneswar, from which she allegedly earns rental

income and operates a beauty parlour generating

approximately around ₹20,000/- per month. The Opposite

Party himself, following their separation, has been living in

a rented accommodation at Bhubaneswar. The Opposite

RPFAM Nos.260 & 293 of 2017 Page 17 of 48

Party has since remarried to one Ms. Ume Fazal on

08.05.2005 and, from this wedlock, has a daughter namely,

Sabina Khan, born on 29.03.2006. He is also responsible

for the care of his aged and ailing mother, besides being

burdened with loan repayments pertaining to the said

residential property at Bhubaneswar, which is mortgaged

with the Oriental Insurance Co-operative Bank.

6.3. It was argued that the enhancement of

maintenance from ₹3,000/- to ₹8,100/- per month is

excessive, arbitrary, and disproportionate to the

responsibilities of the Opposite-Party, particularly

considering that their son Asad born in the year 1995,

attained majority on 29.09.2013 and has been gainfully

employed, as confirmed by a RTI response from KIIT

University vide letter dated 20.07.2017, marked as Ext-S

before the Court below, showing his campus selection and

employment. It was further argued that, under Section 4 of

the 1986 Act, the divorced wife must seek support from her

son and other relatives, and not from her ex-husband

beyond the iddat period.

RPFAM Nos.260 & 293 of 2017 Page 18 of 48

6.4. The learned Counsel for the Opposite Party also

referred to Cr. P No.164 of 2013, wherein the Family Court,

Bhubaneswar had directed the Opposite Party to pay

₹8,00,000/- towards his son’s educational expenses for his

B.Tech course. He emphasized on Opposite Party’s

compliance with all previous maintenance orders, his

financial constraints due to EMIs and family

responsibilities, and his sincere efforts to bring an end to a

long-standing matrimonial litigation spanning over last

fifteen years.

6.5. Drawing attention of this Court to the Training

and Placement Department Notice dated 19

th January,

2017 of KIIT University, which indicates the name of

successful candidates, including the name of Asad Khan at

Serial No.1, which forms part of Exhibit-S, learned Counsel

for Opposite Party ultimately stated that the Petitioner,

being a divorced Muslim wife, should primarily seek

maintenance from her son, who has now become self-

sufficient and gainfully employed. Despite proving so, the

learned Court below enhanced the maintenance. It was

further submitted that there is no material demonstrating

RPFAM Nos.260 & 293 of 2017 Page 19 of 48

any changed circumstances warranting enhancement of the

maintenance earlier granted, and that the mere increase in

the Opposite Party’s salary post-divorce cannot, by itself,

constitute a ground for enhancement.

6.6. Placing reliance on the Judgment of the

Supreme Court in Daniel Latifi (supra), learned Counsel

for Opposite Party submitted that the provisions of Sections

3, 4 and 5 of the Act, 1986 have an overriding effect by

virtue of the non obstante clause “notwithstanding

anything contained in any other law for the time being in

force” and therefore excludes the applicability of the Family

Courts Act to the present proceedings. It was thus

submitted that the claims for enhancement of maintenance

under Section 127 CrPC, so also Family Courts Act are

legally untenable in view of the special statutory scheme

governing divorced Muslim women.

7. From the pleadings and submissions of the

parties, the following seminal issues emanate for

consideration;

RPFAM Nos.260 & 293 of 2017 Page 20 of 48

A. Since the Petitioner initially sought maintenance

for herself so also for her son by filing CMC No. 61

of 2004 under Section 3(2) of the Act, 1986, is she

precluded from invoking Section 127 Cr.P.C. for

enhancement of such maintenance?

B. Whether CrP. No.121 of 2016 preferred by the

Petitioner for further enhancement of maintenance

under Section 127 Cr.P.C. is maintainable?

C. Whether the enhancement of maintenance made

vide the impugned order passed in CrP No. 121 of

2016 needs any interference by enhancing it

further, as prayed by the Petitioner in RPFAM No-

260 of 2017, or needs to be set aside, as prayed

by the Opposite Party in RPFAM No-293 of 2017?

8. So far as Points No.A and B, the same being

interlinked, are taken up together for the sake of brevity.

8.1. It emerges from the records that, on earlier

occasions, the Opposite Party has consistently taken the

stand before this Court that since the Petitioner initially

sought maintenance by filing CMC No. 61 of 2004 under

Section 3(2) of the 1986 Act, she is precluded from seeking

enhancement of maintenance under Section 127 Cr.P.C.

8.2. It is noteworthy to mention here that, in C.M.C.

No. 61 of 2004, filed under Section 3(2) of the Act, 1986,

RPFAM Nos.260 & 293 of 2017 Page 21 of 48

the learned S.D.J.M., Bhubaneswar, by order dated

29.07.2006, directed payment of ₹1,500/- per month each

to the Petitioner and her minor son. The Opposite Party

challenged the said order in Criminal Revision No. 751 of

2006. However, by judgment dated 03.02.2009, this Court

dismissed the Revision Petition and upheld the said order

passed by the learned S.D.J.M., Bhubaneswar.

8.3. Paragraphs 7 and 9 of the said judgment

passed in Crl. Revision No. 751 of 2006, being relevant, are

reproduced herein below:-

“7. It was strenuously contended that in an

application filed under the Act, the learned

Magistrate could not have awarded maintenance to

opposite party no.2 for more than a period of two

years. It was argued that while dealing with the

application for maintenance under the Act, the

Magistrate has no scope to exercise power under

Section 125 Cr.P.C. However, it is well settled

that wrong nomenclature of a petition is not

binding on the Court. In Raj Pal and others-vrs-

State of U.P.: 2003 (2) CRJ 87, it has been held by

the Allahabad High Court that it is well settled that

labeling a wrong will not oust the jurisdiction of the

Court, it can be traced. In Hazi Farzand Ali -vrs-

Mst. Noorjahan: 1988 CRI. L.J. 1421, joint

application for maintenance filed by divorced

Muslim woman on her behalf and on behalf of

her children was treated by Rajastan High

Court as an application for maintenance by

each of her minor children under Section 125

Cr. P.C. whereas her application was decided

RPFAM Nos.260 & 293 of 2017 Page 22 of 48

in accordance with the Act. It has been held by

the Hon’ble Supreme Court in Iqbal Bano-Vrs-State

of U.P. : 2007 (6) S.C.C. 785 that proceedings under

Section 125 Cr.P.C. are civil in nature and even if

the Court noticed that there was a divorced Muslim

woman who had made an application under

Section 125 of the Cr. P.C., it was open to the Court

to treat the same as a petition under the Act

considering the beneficial nature of the legislation

especially since proceedings under Section 125 of

the Cr. P.C. and under the Act are tried by the same

Court.

9. In Mohammed Abdul Hai alias farooq Pasha

Vrs. Saleha Khatoon & Ors : 2007 CRI.L.J.1394,

It has been held by the Bombay High Court that as

far as children are concerned, it is clear that if the

divorced Muslim woman claims maintenance for the

minor children under Section 3(l)(b), the former

husband is bound to provide maintenance for a

period of two years from the respective dates of

birth of such children. Right under Section 3(l)(b) is

given to the divorced woman. In fact, the Act

itself is enacted for the protection of certain

rights of Muslim Woman on their divorce; The

Act has no relevance to the rights of the

children to claim maintenance from their

father. Their rights are covered by Section

125. Cr.P.C. and that right is not taken away

by the provisions of Section 3(l)(b) of the Act.

(Emphasis Supplied)

8.4. Subsequently, in C.M.C. No.141 of 2009, which

was re-numbered as Cr. P No.36 of 2011, being transferred

to the Court of learned Judge, Family Court,

Bhubaneswar, the maintenance was enhanced to ₹3,000/-

per month each under Section 127 Cr. P.C. by order dated

25.02.2011. Despite taking a similar stand, as taken in the

RPFAM Nos.260 & 293 of 2017 Page 23 of 48

present RPFAM No.293 of 2017, the said enhancement was

affirmed by this Court in RPFAM No.105 of 2011 vide

judgment dated 25.02.2015. Paragraph Nos.9, 11, 12, 13 &

14 of the said judgment, being relevant, are reproduced

herein below:-

“9. Thus, as per Clause (f) Explanation to Sub-

Section (1) of Section 7 of the Family Courts

Act any suit or proceeding for maintenance

can be taken up and dispose of by the Family

Court. Since in essence an application to seek

enhancement of maintenance, is a proceeding

for maintenance and hence this Court is of the

opinion that as per the ruling given in the

case of SHABANA BANO V. IMRAN KHAN (supra)

the Judge, Family Court has jurisdiction to

decide cases under Section 3 of the Act.

11. Thus, the constitution bench of the Supreme

Court has held that it is the duty of the husband to

make reasonable and fair provision for the divorced

wife which obviously includes her maintenance as

well. Such a reasonable and fair provision

extending beyond the iddat period must be made

by the husband within the iddat period in terms of

Section 3(1)(a) of the Act. The Supreme Court

further held that Liability of Muslim husband

to his divorced wife arising under Section

3(l)(a) of the Act to pay maintenance is not

confined to iddat period.

12. Giving purposive interpretation to the

provision, the Supreme Court in the case of IQBAL

BANO V. STATE OF U.P. AND ANOTHER; (2007)

6 Supreme Court Cases 785 held that a Muslim

husband is liable to make reasonable and fair

provision for the future of the divorced wife which

obviously includes her maintenance as well. Such a

reasonable and fair provision extending beyond the

RPFAM Nos.260 & 293 of 2017 Page 24 of 48

iddat period must be made by the husband within

the iddat period in terms of Section 3(1) (a) of the

Act. Now, the question, therefore, remains

whether the Court has also jurisdiction to

enhance the said amount of maintenance.

13. The Act was enacted to protect the rights of

Muslim women who have been divorced by, or have

obtained divorce from, their husband and to provide

for matters connected therewith or incidental

thereto. Thus, it can be said that this is a

progressive legislation aimed at protecting the

rights of divorced Muslim women. It is apparent

from the statement of objects and reasons of the Act

that a divorced Muslim woman shall be entitled to a

reasonable and fair provision and maintenance

within the period of iddat by her former husband

and in case she maintains the children born to her

before or after her divorce, such reasonable

provision and maintenance would be extended to a

period of two years from the dates of birth of the

children. Thus, from the expression “such

reasonable provision and maintenance”

should be fixed taking into consideration the

needs of the divorced woman, the standard of

life enjoyed by her during her marriage and

the means of her former husband or, as the

case may be, for payment of such mahr or

dower or the delivery of such properties

referred to in clause (d) of sub-section (1) to the

divorced woman.

14. Thus, it is clear that while awarding

maintenance, the needs of the divorced woman, the

standard of life enjoyed by her during her marriage

and the means of her former husband is to be taken

into consideration. Now the time changes and in the

meantime the need of the divorced woman becomes

more because of rise in prices and other related

factors as well as the education of her children and

to maintain the standard of life she was enjoying

before her marriage and the growth in the income of

her former husband. This Court is of the opinion

that a purposive interpretation of the Act

would also include the power of the

Magistrate or Judge, Family Court to enhance

RPFAM Nos.260 & 293 of 2017 Page 25 of 48

the maintenance granted to a divorced Muslim

woman after lapse of sometime of passing of

the final order under Section 3 of the Act.

Accordingly, this issue is answered.”

(Emphasis Supplied)

8.5. Law is well settled that, “wrong nomenclature of

a petition is not binding on the Court” and in the present

case also the coordinate Bench has taken note of such

point. That apart, Crl. Revision No.751 of 2006 was decided

by the coordinate Bench treating such joint application for

maintenance filed by the Petitioner on her behalf so also on

behalf of her son as an application for maintenance under

Section 125 Cr. P.C.

8.6. From the consistent course of proceedings and

orders passed by the learned Court below from time to

time, as detailed above, so also the confirming judgment

passed by this Court in Criminal Revision No. 751 of 2006,

wherein it was held that wrong nomenclature of a Petition

is not binding on the Court, it is quite evident that the

initial maintenance in C.M.C. No.61 of 2004 was effectively

granted under 125 Cr. P.C. Therefore, this Court is of the

view that no separate declaration under Section 5 of the

RPFAM Nos.260 & 293 of 2017 Page 26 of 48

Act, 1986 was required, as urged before this Court by the

learned Counsel for the Opposite-Party, and it can safely be

presumed that the Petitioner had conceded to be governed

under the provisions of Section 125 Cr.P.C.

9. That apart, in Shabana Bano vs. Imran Khan ,

reported in (2010) 1 SCC 666, the Supreme Court held as

follows;

“7. Under Section 125(1)(a), a person who, having

sufficient means, neglects or refuses to maintain his

wife who is unable to maintain herself, can be

asked by the court to pay a monthly maintenance

to her at a rate not exceeding five hundred rupees.

By clause (b) of the Explanation to Section

125(1), “wife” includes a divorced woman who

has not remarried. These provisions are too clear

and precise to admit of any doubt or refinement.

The religion professed by a spouse or by the

spouses has no place in the scheme of these

provisions. Whether the spouses are Hindus or

Muslims, Christians or Parsis, pagans or

heathens, is wholly irrelevant in the

application of these provisions. The reason for

this is axiomatic, in the sense that Section

125 is a part of the Code of Criminal

Procedure, not of the civil laws which define

and govern the rights and obligations of the

parties belonging to particular religions, like

the Hindu Adoptions and Maintenance Act, the

Shariat, or the Parsi Matrimonial Act. Section

125 was enacted in order to provide a quick

and summary remedy to a class of persons

who are unable to maintain themselves. What

difference would it then make as to what is

the religion professed by the neglected wife,

child or parent? Neglect by a person of

RPFAM Nos.260 & 293 of 2017 Page 27 of 48

sufficient means to maintain these and the

inability of those persons to maintain

themselves are the objectiv e criteria which

determine the applicability of Section 125 .

Such provisions, which are essentially of a

prophylactic nature, cut across the barriers of

religion. True, that they do not supplant the

personal law of the parties but, equally, the religion

professed by the parties or the state of the personal

law by which they are governed, cannot have any

repercussion on the applicability of such laws

unless, within the framework of the Constitution,

their application is restricted to a defined category

of religious groups or classes. The liability imposed

by Section 125 to maintain close relatives who are

indigent is founded upon the individual's obligation

to the society to prevent vagrancy and destitution.

That is the moral edict of the law and morality

cannot be clubbed with religion. Clause(b) of the

Explanation to Section 125(1), which defines

“wife” as including a divorced wife, contains

no words of limitation to justify the exclusion

of Muslim women from its scope. Section 125

is truly secular in character.”

(Emphasis supplied)

9.1. Similarly, paragraph Nos. 31 and 33 in Danial

Latifi (supra), which judgment was referred to by both the

parties during argument, being germane, are reproduced

below for ready reference:

“31. Even under the Act, the parties agreed

that the provisions of Section 125 CrPC would

still be attracted and even otherwise, the

Magistrate has been conferred with the power

to make appropriate provision for

maintenance and, therefore, what could be

earlier granted by a Magistrate under Section

125 CrPC would now be granted under the

RPFAM Nos.260 & 293 of 2017 Page 28 of 48

very Act itself. This being the position, the Act

cannot be held to be unconstitutional.”

“33. In Shah Bano case [(1985) 2 SCC 556 : 1985

SCC (Cri) 245] this Court has clearly explained as to

the rationale behind Section 125 CrPC to

make provision for maintenance to be paid to

a divorced Muslim wife and this is clearly to

avoid vagrancy or destitution on the part of a

Muslim woman. The contention put forth on behalf

of the Muslim organisations who are interveners

before us is that under the Act, vagrancy or

destitution is sought to be avoided but not by

punishing the erring husband, if at all, but by

providing for maintenance through others. If for any

reason the interpretation placed by us on the

language of Sections 3(1)(a) and 4 of the Act is not

acceptable, we will have to examine the effect of the

provisions as they stand, that is, a Muslim woman

will not be entitled to maintenance from her

husband after the period of iddat once the talaq is

pronounced and, if at all, thereafter maintenance

could only be recovered from the various persons

mentioned in Section 4 or from the Wakf Board.

This Court in Olga Tellis v. Bombay Municipal

Corpn. [(1985) 3 SCC 545] and Maneka

Gandhi v. Union of India [(1978) 1 SCC 248]

held that the concept of “right to life and

personal liberty” guaranteed under Article 21

of the Constitution would include the “right to

live with dignity”. Before the Act, a Muslim

woman who was divorced by her hus band was

granted a right to maintenance from her husband

under the provisions of Section 125 CrPC until she

may remarry and such a right, if deprived, would

not be reasonable, just and fair. Thus the

provisions of the Act depriving the divorced

Muslim women of such a right to maintenance

from her husband and providing for her

maintenance to be paid by the former husband

only for the period of iddat and thereafter to

make her run from pillar to post in search of

her relatives one after the other and

ultimately to knock at the doors of the Wakf

Board does not appear to be reasonable and

RPFAM Nos.260 & 293 of 2017 Page 29 of 48

fair substitute of the provisions of Section 125

CrPC. Such deprivation of the divorced Muslim

women of their right to maintenance from their

former husbands under the beneficial provisions of

the Code of Criminal Procedure which are otherwise

available to all other women in India cannot be

stated to have been effected by a reasonable, right,

just and fair law and, if these provisions are less

beneficial than the provisions of Chapter IX of the

Code of Criminal Procedure, a divorced Muslim

woman has obviously been unreasonably

discriminated and got out of the protection of the

provisions of the general law as indicated under the

Code which are available to Hindu, Buddhist, Jain,

Parsi or Christian women or women belonging to

any other community. The provisions prima

facie, therefore, appear to be violative of

Article 14 of the Constitution mandating

equality and equal protection of law to all

persons otherwise similarly circumstan ced

and also violative of Article 15 of the

Constitution which prohibits any

discrimination on the ground of religion as

the Act would obviously apply to Muslim

divorced women only and solely on the ground

of their belonging to the Muslim religion. It is

well settled that on a rule of construction, a

given statute will become “ultra vires” or

“unconstitutional” and, therefore, void,

whereas on another construction which is

permissible, the statute remains effective and

operative the court will prefer the la tter on

the ground that the legislature does not

intend to enact unconstitutional laws. We

think, the latter interpretation should be

accepted and, therefore, the interpretation

placed by us results in upholding the validity

of the Act. It is well settled that when by

appropriate reading of an enactment the validity of

the Act can be upheld, such interpretation is

accepted by courts and not the other way round.”

(Emphasis Supplied)

RPFAM Nos.260 & 293 of 2017 Page 30 of 48

9.2. In Mohd. Abdul Samad (supra), which was

passed after an exhaustive consideration of a catena of

precedents on the subject and which has also been duly

relied upon by the Petitioner, it was held as follows;

“91. In my view, the rights created under the

provisions of the 1986 Act are in addition to

and not in derogatio n of the right created

under Section 125CrPC , and the same is the

basis for this Court's conclusion in Danial

Latifi v. Union of India, reported in (2001) 7 SCC

740 : (2007) 3 SCC (Cri) 266] to save the 1986 Act

from the vice of unconstitutionality. This is because

nowhere in the judgment of this Court in the

aforesaid case is there a reference to any bar under

the provisions of the 1986 Act and neither has this

Court created any such bar in the aforesaid

judgment for a divorced Muslim woman to approach

the court under Section 125CrPC for maintenance.

Thus, the non obstante clause in sub-section (1) of

Section 3 cannot result in Sections 3 and 4 of the

1986 Act whittling down the application of Section

125CrPC and other allied provisions of the CrPC to

a divorced Muslim woman. Therefore, if a

divorced Muslim woman approaches the

Magistrate for enforcement of her rights under

Section 125CrPC, she cannot be turned away

to seek relief only under Sections 3 and 4 of

the 1986 Act as is sought to be contended by

the appellant herein. In other words, such a

divorced Muslim woman is entitled to seek

recourse to either or both the provisions. The

option lies with such a woman. The court would

have to ultimately balance between the amount

awarded under the 1986 Act an d the one to be

awarded under Section 125CrPC.”

“94. I find that Section 5 provides for a situation

where a Muslim woman and her former husband

RPFAM Nos.260 & 293 of 2017 Page 31 of 48

decide to voluntarily elect to pursue the remedies

under Sections 125 to 128CrPC by way of a written

application on the first date of hearing of an

application under Section 3 of the 1986 Act. The

provision seeks to provide an option that can be

mutually exercised by the Muslim woman and her

former husband. The deliberate use of the words

“option” and “former husband” demonstrates that

Section 5 does not statutorily confine the

circumstances under which the claim of

maintenance of a divorced Muslim woman can be

governed under the secular law of maintenance.

Similarly, Section 7, being a transitional provision,

only determines that every pending application

under Section 125CrPC for maintenance at the time

of commencement of the 1986 Act would be

disposed of in accordance with the provisions of the

1986 Act. The purpose of a transitional provision is

to mitigate uncertainty from the minds of the

litigants who were faced with the peculiar situation

with respect to pending maintenance applications

and the possibility of fresh applications being filed

under the 1986 Act as per the option of the parties.

The use of the expression in Section 7 of the 1986

Act “notwithstanding anything contained in that

Code”, with respect to the CrPC does not indicate

the intent to abrogate the independent right of a

Muslim woman, as a victim of neglect or destitution,

to claim maintenance from her husband. Moreover,

Section 7 is subject to Section 5 of the said Act.

Also, a transitional provision is of a temporary

nature. On the strength of a transitional

provision the main Act i.e. the 1986 Act

cannot be interpreted in a manner so as to

restrict the rights of a divorced Muslim

woman to other available remedies such as

under Section 125CrPC.”

“102. The question of interpreting Section 3 of the

1986 Act should also be construed from the

perspective of access to justice. Therefore, a

technical or pedantic interpretation of the 1986 Act

would stultify not merely gender justice but also the

constitutional right of access to justice for the

RPFAM Nos.260 & 293 of 2017 Page 32 of 48

aggrieved Muslim divorced women who are in dire

need of maintenance. This Court would not

countenance unjust or Faustian bargains

being imposed on women. The emphasis is on

sufficient maintenance, not minimal amount.

After all, maintenance is a facet of gender

parity and enabler of equality, not charity. It

follows that a destitute Muslim woman has

the right to seek maintenance under Section

125CrPC despite the enactment of the 1986

Act. Thus, an application for maintenance

under Section 125CrPC would not prejudice

another application under Section 3 of the

1986 Act insofar as the latter is additional in

nature and does not pertain to the same

requirements sought to be provided for by

Section 125CrPC. One cannot be a substitute

for or supplant another; rather it is in

addition to and not in derogation of the

other.”

“115. What emerges from our separate but

concurring judgments are the following

conclusions:

115.1. Section 125CrPC applies to all married

women including Muslim married women.

115.2. Section 125CrPC applies to all non-Muslim

divorced women.

115.3. Insofar as divorced Muslim women are

concerned,

115.3.1. Section 125CrPC applies to all such

Muslim women, married and divorced under the

Special Marriage Act in addition to remedies

available under the Special Marriage Act.

115.3.2. If Muslim women are married and

divorced under Muslim law then Section

125CrPC as well as the provisions of the 1986

Act are applicable. Option lies with the

Muslim divorced women to seek remedy under

RPFAM Nos.260 & 293 of 2017 Page 33 of 48

either of the two laws or both laws. This is

because the 1986 Act is not in derogation of

Section 125CrPC but in addition to the said

provision.

115.3.3. If Section 125CrPC is also resorted to by a

divorced Muslim woman, as per the definition

under the 1986 Act, then any order passed under

the provisions of the 1986 Act shall be taken into

consideration under Section 127(3)(b)CrPC.

115.4. The 1986 Act could be resorted to by a

divorced Muslim woman, as defined under the said

Act, by filing an application thereunder which could

be disposed of in accordance with the said

enactment.

115.5. In case of an illegal divorce as per the

provisions of the 2019 Act then,

115.5.1. Relief under Section 5 of the said Act could

be availed for seeking subsistence allowance or, at

the option of such a Muslim woman, remedy under

Section 125CrPC could also be availed.

115.5.2. If during the pendency of a petition filed

under Section 125CrPC, a Muslim woman is

“divorced” then she can take recourse under

Section 125CrPC or file a petition under the 2019

Act.

115.5.3. The provisions of the 2019 Act provide

remedy in addition to and not in derogation of

Section 125CrPC.”

(Emphasis Supplied)

10. Admittedly, the earlier application of the

Petitioner for enhancement of maintenance under Section-

127 Cr.P.C. in Cr.P No.36 of 2011 was held to be

maintainable and justified by this Court in RPFAM No.105

of 2011, despite taking a similar stand, as has been taken

RPFAM Nos.260 & 293 of 2017 Page 34 of 48

in RPFAM No. 293 of 2017. The said judgment in RPFAM

No.105 of 2011 has attained finality, not being challenged

by the Opposite Party. Hence, this Court is of the view that

it is no more open for the Opposite Party to take such a

stand regarding maintainability so also locus standi of the

Petitioner to move an application for further enhancement

of maintenance under Section 127 Cr.P.C. and such

application is maintainable. This Court is of further view

that, in view of the settled position of law, since there is no

such provision under the Act, 1986 for enhancement of

maintenance awarded under Section 3(2) of the said Act, a

divorced Muslim Woman can move application under

Section 127 Cr.P.C./Section 146 BNSS for enhancement of

maintenance. Since Act, 1986 is not in derogation of the

provisions enshrined under Section 125 to section 128

Cr.P.C., it was open for the Petitioner to take recourse

under the said provisions, as well as the provisions under

the Act, 1986. Accordingly, Points No.A and B are answered

in favour of the Petitioner.

11. So far as Point No-C, the same relates to the

claim of the Petitioner seeking further enhancement of

RPFAM Nos.260 & 293 of 2017 Page 35 of 48

maintenance over and above the amount enhanced vide the

impugned order, vis-a-vis the challenge made by the

Opposite Party (Petitioner in RPFAM No.293 of 2017)

against such enhancement of maintenance from ₹3,000/-

to ₹8,100/- per month.

12. Law is well settled that determination as well as

enhancement of maintenance depend upon several factors,

including the status and position of the parties, the

reasonable requirements of the Claimant towards food,

clothing, shelter and medical expenses, the income and

liabilities of the Respondent, the income, if any, of the

claimant, the number of dependents the Respondent is

obliged to maintain so also the changed circumstances,

which may mandate enhancement or reducti on of

maintenance awarded in favour of the Claimant.

12.1. As is revealed from the Trial Court Record

in Crl.P No.36 of 2011, it is evident that the learned Court

below had earlier enhanced the maintenance from ₹1,500/-

to ₹3,000/- per month in favour of the Petitioner as well as

her minor son, totaling ₹6,000/- per month. The said order

was affirmed by this Court in RPFAM No.105 of 2011.

RPFAM Nos.260 & 293 of 2017 Page 36 of 48

12.2. Subsequently, the Petitioner filed Cr.P

No.121 of 2016 seeking furth er enhancement of

maintenance from ₹6,000/- to ₹35,000/- per month,

primarily on the grounds of steep rise in the cost of living in

the city of Bhubaneswar, inadequacy of the amount

previously awarded to meet her basic needs, escalation in

prices of essential commodities, and alleged promotion of

the Opposite Party to the post of Divisional Manager

drawing a salary of approximately ₹1,00,000/- per month

after implementation of the 7th Pay Commission.

12.3. As is further revealed from the deposition of the

Petitioner, who deposed as P.W.1 in Cr.P.No.121 of 2016, in

her examination-in-chief, she only stated that her monthly

maintenance be enhanced from Rs.3,000/- per month to

Rs.35,000/- per month under changed circumstances.

Though it was pleaded regarding rise in the cost of living in

the city of Bhubaneswar so also increase in the salary of

the Opposite Party, she failed to adduce any evidence to

substantiate such pleadings. The Petitioner also did not

produce any documentary evidence to substantiate her

prayer. Relying on the judgment of this Court in RPFAM

RPFAM Nos.260 & 293 of 2017 Page 37 of 48

No.105 of 2011, she only stated that after pronouncement

of the said judgment there was an increase in the monthly

emolument and the perquisite of the Opposite Party.

Accordingly, a claim was made for enhanced maintenance.

She could not prove what the monthly emolument and the

perquisites of the Opposite Party are. Though, during her

cross-examination, she admitted that her son has

completed B. Tech Degree, but she denied the suggestion

that her son Asad Khan has joined in M/s. J.M.C. Project

India Ltd.

12.4. So far as the Opposite Party, who deposed as

O.P.W.1 in Cr.P.No.121 of 2016, denied his promotion to

the post of Divisional Manager and receiving a salary of

Rs.1,00,000/- per month after introduction of 7

th Pay

Commission. In para-38 of his Affidavit Evidence, he stated

that his salary is about Rs.50,872.54 per month after

mandatory deductions. It was also stated that he is

maintaining his family for food, clothing, medicine expenses

for his mother, wife, daughter and himself, education

expenses of daughter and fulfilling other social

responsibilities with much difficulty. That apart, it was also

RPFAM Nos.260 & 293 of 2017 Page 38 of 48

stated by O.P.W No.1 that he has the responsibility of the

future of his daughter like her education and marriage. He

also stated that he has no house to stay anywhere and he is

staying in a rented house, as the house built by him at

Patia, Bhubaneswar has been forcefully occupied by the

Petitioner so also his son, for which he lodged an F.I.R.

before the Chandrasekharpur Police Station vide P.S. Case

No.275 of 2003, which is sub-judice now.

12.5. That apart, in his examination-in-chief, the

O.P.W.1 stated that his son Asad Khan became major on

29.09.2013, for which payment of maintenance to his son

has been stopped from the said date. As per the information

received under the R.T.I. Act, Asad Khan completed his

B.Tech Degree (Civil Engineering) course in May, 2017 and

now must be working in M/s. JMC Projects India Ltd. He

also exhibited the document issued by the KIIT University

showing placement of his son Asad Khan, obtained under

the R.T.I. Act, which was marked as Ext.S without

objection. O.P.W.1 also stated in his examination-in-chief

that as the Petitioner is staying in his house at Patia,

Bhubaneswar, neither she is paying any house rent for her

RPFAM Nos.260 & 293 of 2017 Page 39 of 48

stay at Bhubaneswar nor incurring any expenses towards

the education of her son, as he has already passed B.Tech

Degree in Civil Engineering.

12.6. It is further revealed from the deposition of

O.P.W.1 that, his evidence regarding the Petitioner

forcefully occupying his house at Patia, Bhubaneswar

remained untouched and un-demolished during his cross-

examination. Furthermore no suggestion was given to him

during his cross-examination regarding placement of his

son Asad Khan to be false. Ext.S in the said regard was also

marked without any objection. That apart, on being asked

by the learned Court below, the Opposite Party stated that

he is posted as Deputy Manager in the Oriental Insurance

Company at Udit Nagar Division Office at Rourkela and

getting basic salary of Rs.52,000/- without any grade pay

and Dearness Allowance as per the direction of the

authorities concerned. It was also pleaded and proved that

to build the said house at Patia, Bhubaneswar, he is

repaying Rs.18,000/- per month to his friends and relatives

towards hand loans, apart from E.M.I. of Rs.2709/- per

month towards repayment of housing building loan.

RPFAM Nos.260 & 293 of 2017 Page 40 of 48

12.7. Also, in paras-29 and 30 of his Affidavit

Evidence, O.P.W.1 has detailed about his income and

expenditure as on 26.08.2017, i.e., as on the date of filing

of the Affidavit Evidence.

12.8. So far as income of the Petitioner, it was alleged

that she is earning Rs.20,000/- per month towards house

rent, from the house which she is forcefully occupying, by

letting out a portion of the said house situated at Plot

No.516/1678/2869 and also earning further amount of

Rs.25,000/- per month from the beauty parlour run by her

in the said house. But during his cross-examination,

O.P.W.1 admitted that the said house consists of two bed

rooms and one hall for dining and drawing purpose and he

has not gone to the said house for the last 14 years.

Though he stated in his affidavit evidence that house rent

of Rs.20,000/- is being obtained by the Petitioner by

extending construction of the said house, it was suggested

to O.P.W.1 during his cross-examination that there is no

extension of the said house by making additional

construction. It was further suggested to him that no

beauty parlour is functioning in the said house. The

RPFAM Nos.260 & 293 of 2017 Page 41 of 48

O.P.W.1 also admitted during his cross-examination that he

has not taken any step before the Court below for deputing

a Court Commissioner to ascertain about beauty parlour

allegedly run in the said house so also additional

construction made in the said house. O.P.W.1 further

agreed during his cross-examination that, in the year 2004,

he took a different stand before the learned S.D.J.M.,

Bhubaneswar regarding alleged income of the Petitioner

stating that she was earning Rs.4,000/- by working in

Mayfair Hotel and Rs.5,000/- by making cakes. On being

asked by the Court, O.P.W.1 further stated that he does not

know if the Petitioner has undergone any course for

running a beauty parlour. Hence, from such evidence on

record, it is well revealed that the Opposite Party failed to

prove the income of the Petitioner, though it was proved

that his son Asad, who is a B.Tech Engineer, got an

employment offer in M/s. JMC Projects India Ltd and both

the Petitioner and their son have free shelter in the State

Capital.

12.9. As is revealed from the impugned judgment, the

learned Court below was of the view that, with passage of

RPFAM Nos.260 & 293 of 2017 Page 42 of 48

time, since the monthly salary of the Opposite Party has

increased to several times, it would be improper to continue

with the said amount of maintenance of Rs.3,000/-

awarded in favour of the Petitioner, which appears to be too

meagre for normal life of a woman. Accordingly, it was

enhanced to Rs.8,100/-.

12.10. The learned Court below was also of the view

that with advancing age, both men and women become

weak and they depend on others for their sustenance. It

was further observed that, though it is stated by the

Opposite Party that Asad Khan has already become major

and is earning, there is no evidence with regard to his

actual income. That apart, since Asad Khan has passed

B.Tech in Civil Engineering two to three years back, still it

cannot be presumed that he is getting very high salary with

a meager experience, in absence of any conclusive evidence

to prove his actual income.

13. It is noteworthy to state that, as per the 1

st Proviso

under sub-section-1 of Section 4 of the Act, 1986, if a

divorced woman has children, the Magistrate shall order

only such children to pay maintenance to her. In the event

RPFAM Nos.260 & 293 of 2017 Page 43 of 48

of any such children, being unable to pay such

maintenance, the Magistrate shall order the parents of such

divorced woman to pay maintenance to her. Furthermore,

remedy under Section 144(1)(d) of BNSS is also there to

seek monthly allowance for maintenance from the son, if

he, having sufficient means, neglects or refuses to maintain

his father or mother, who is unable to maintain himself or

herself.

14. Admittedly, the Petitioner, who is staying with

her major son, is having a shelter in the posh area of the

State Capital. That apart, her son is a graduate engineer

and must be around 30 years old as on date. No suggestion

was given to O.P.W.1 during his cross-examination that he

is stating falsehood and Asad is not gainfully employed.

However, in absence of any concrete proof regarding Asad’s

exact income during the relevant period, prayer of the

Petitioner for enhancement of maintenance could not have

been denied by the learned Court below, as was argued

before this Court.

15. There is no documentary evidence in the TCR

regarding the net or gross salary of the Opposite Party

RPFAM Nos.260 & 293 of 2017 Page 44 of 48

during the relevant period. Rather, apart from what the

Opposite Party stated in his examination-in-chief regarding

his expenses, in para-38 of his affidavit evidence he stated

his salary to be Rs.50872.54 as on 26.08.2017, i.e., the

date of filing affidavit evidence. However, on being asked by

the Court, he stated that his basic salary is Rs.52,000/-

without any grade pay. That apart, he admitted that he gets

Dearness Allowance.

16. Admittedly, in the impugned order there is no

such observation or finding of the learned Court below as to

what was the basis to enhance the maintenance from

Rs.3,000/- to Rs.8,100/- per month. The Supreme Court in

Kulbhushan Kumar (Dr) Vrs. Raj Kumari, reported in

(1970) 3 SCC 129 and in Kalyan Dey Chowdhury Vrs.

Rita Dey Chowdhury Nee Nandy, reported in (2017) 14

SCC 200, held that awarding approximately 25% of the

husband’s net income as maintenance would be just and

reasonable. In the present case, as per the admission of the

Opposite Party, his basic salary was ₹52,000/- per month

as on 26.08.2017. Twenty-five percent thereof comes to

₹13,000/- per month.

RPFAM Nos.260 & 293 of 2017 Page 45 of 48

17. At this stage, it is noteworthy to mention here

that, the Opposite Party , apart from paying the enhanced

maintenance of Rs.3000/- to the Petitioner so also equal

amount to her son , till he became major, being directed

by the learned Judge, Family Court, Bhubaneswar, in Cr.P.

No. 164 of 2013, which was subsequently confirmed by this

Court in RPFAM No. 16 of 2018, has paid an amount of

₹8,00,000/- to his son Asad Khan towards completion of

his professional education.

18. That apart, admittedly, Asad Khan is staying

with the Petitioner (his mother) at Patia in the house built

by the Opposite Party by incurring loans and Asad is a

graduate engineer. They have no issue regarding shelter.

The learned Court below was of the view that, even though

the Son, namely Asad khan, had become major and had

completed his B.Tech degree years back, still it cannot be

presumed that he is getting very high salary with a meager

experience, in absence of any conclusive evidence to prove

his actual income. However, in between, further eight years

have elapsed. It can be well presumed that Asad Khan must

have been gainfully employed in the Company as per the

RPFAM Nos.260 & 293 of 2017 Page 46 of 48

information received under the R.T.I., which was marked as

Ext.S or in some other Company and must be getting a

good salary. It is also admitted fact on record that after

divorce, the Opposite Party has remarried and is having a

daughter, who must be around 19 years old, as she was

around 11 years old as on 26.08.2017. Apart from expenses

towards her higher studies, marriage, the Opposite Party is

having obligations towards his family so also his old ailing

mother. That apart, he is repaying the house building loan,

hand loan, so also paying maintenance to the Petitioner as

per the previous orders passed by the learned Court below.

19. Taking into consideration the totality of

circumstances, particularly the fact that the Petitioner is

residing in the house at Patia registered in the name of the

Opposite Party along with her major son, who is

professionally qualified and is capable of maintaining her,

and keeping in view the obligations and liabilities of the

Opposite Party, as detailed above and his present status,

this Court deems it just and proper to enhance the

maintenance to ₹10,000/- per month, instead of Rs.8,100/-

,payable with effect from 05.07.2016, i.e., the date of filing

RPFAM Nos.260 & 293 of 2017 Page 47 of 48

of Criminal Proceeding No.121 of 2016. Point No.C is

answered accordingly.

20. However, it is made clear that, both the parties

will be at liberty to approach the learned Court below for

further enhancement or reduction or stoppage of

maintenance in the event of changed circumstances, such

as increase in the salary of the Opposite Party, employment

or improved earnings of the son Asad Khan, or gainful

employment or earning of the Petitioner.

21. As is revealed from the record, this Court, in

RPFAM No.293 of 2017, vide order dated 12.04.2018 ,

stayed the operation of the impugned order subject to

payment of maintenance at the pre-enhanced rate, i.e., @

Rs.3000/- per month. Hence, it is directed that, in addition

to the enhanced maintenance of Rs.10,000/ - per month,

the Opposite Party shall also pay Rs.20,000/ - to the

Petitioner every month towards differential arrears w.e.f.

January,2026 till adjustment of the entire arrears. Such

payments shall be made regularly as per the prevalent

mode of payment, as directed by this Court in W.P.(Crl.) No.

372 of 2009, which was decided on 23.12.2009. It is made

RPFAM Nos.260 & 293 of 2017 Page 48 of 48

clear that the payments already made to the Petitioner

@Rs.3000/- per month till date shall be adjusted from the

revised maintenance amount payable to the Petitioner.

22. It is made further clear that any observation

made herein shall not influence the concerned Civil Court,

while adjudicating Civil Suit No.115 of 2008 pending

between the parties regarding right, title and interest over

House No.516/1678/ 2869, situated at Patia,

Bhubaneswar.

23. With the aforesaid observation and direction,

the RPFAM No.260 of 2017 stands allowed to the effect

indicated above and disposed of accordingly. Consequently,

RPFAM No.293 of 2017 stands dismissed. No order as to

costs.

…….….……………………

S.K. MISHRA, J.

Orissa High Court, Cuttack

The 20

th

January, 2026/Prasant