Challenge To Ex-Parte Interim Maintenance Order Confined To Proving Absence Of Service, Can't Argue On Merits: Allahabad HC

A bench of Justice Garima Prashad passed the order while dismissing a criminal revision petition filed by the husband.

Briefly put, the revisionist-husband had challenged an ex parte order passed by a Court of Civil Judge (Junior Division) directing him to pay Rs 4K per month as interim maintenance to his wife under Section 23 of the Protection of Women from Domestic Violence Act, 2005.

His plea to recall the order was rejected by the trial court, clearly recording that he had been duly served and had failed to appear before the court. His Criminal Appeal before the learned Additional Sessions Judge was also dismissed. Therefore, he moved the HC.

Before the HC, his counsel contended that the wife had voluntarily deserted the matrimonial home in 2020 without sufficient cause, taking jewellery and cash, while leaving their two minor children behind.

It was also his case that he never subjected her to cruelty and despite the fact that he had obtained a decree for the restitution of conjugal rights in August 2025, his wife deliberately avoided returning.

Regarding the ex parte order, it was submitted that the same is illegal on account of the absence of proper service of summons upon him and that the order has been passed in violation of the principles of natural justice.

He argued that he was solely bearing the expenses of the children's upbringing and that his wife was well-educated, capable of maintaining herself and had even concealed her true financial position, including a bank balance of over Rs 3,00,000.

On the other hand, the wife alleged that her husband and father-in-law were habitual consumers of alcohol who subjected her to physical and mental cruelty.

She claimed that she was repeatedly expelled from the matrimonial home and that her husband forcibly took away their children, retaining her educational certificates and streedhan.

She further alleged that the husband had extracted Rs 3,00,000 from her father to purchase a plot and later forcibly withdrew the refunded money from her account.

Taking into account the arguments of both sides, the High Court noted that both the trial court and the appellate court had recorded a categorical and concurrent finding of fact that the revisionist was duly served with the notice of the proceedings.

The bench stressed that, since he did not appear before the Trial Court, it was not permissible for him to raise those grounds in the HC, which would otherwise be available to him in a contested proceeding on the merits.

"Once the revisionist, despite service, chose not to appear before the trial court, he cannot now be permitted to assail the order by advancing substantive defences relating to the merits of the dispute. The scope of challenge to an ex parte order in such circumstances is confined to demonstrating absence of service or sufficient cause for non-appearance. Since both the courts of fact have already recorded a finding that the revisionist was duly served and had failed to appear, no interference with the impugned orders is warranted in revisional jurisdiction", the Bench remarked.

The Court also added that once the marital relationship is admitted, it becomes the husband's legal and moral obligation to provide maintenance.

Additionally, regarding the husband's financial capacity, the Court noted that the revisionist was incurring expenses of Rs 9,000 per month for credit card payments, alongside the children's expenses (Rs. 1,27,181/- annually), which clearly indicated that he was not without financial capacity.

Under such circumstances, the High Court stated that awarding a 'modest' amount of Rs 4,000 per month towards interim maintenance covering food, clothing, and medical needs could not be termed excessive or arbitrary.

The Bench also noted that there was no cogent material on record to establish that the wife in the present case was gainfully employed or possessed an independent source of income sufficient for her sustenance.

Thus, finding no illegality, perversity, or jurisdictional error in the lower court orders, the revision plea was dismissed.

However, the Court granted the Husband liberty to participate in the ongoing main proceedings before the trial court and to pursue his case on the merits in accordance with the law.