Challenging Ex-Parte Maintenance Order? File Recall Plea U/S 145(2) BNSS Before Moving HC, Clarifies Allahabad High Court

A bench of Justice Jai Krishna Upadhyay clarified that an aggrieved party must first approach the Family Court or Judicial Magistrate under Section 145 (2) BNSS/Section 126(2) CrPC to seek the recall of such an ex parte order.

The Court added that once an application is passed by the Judicial Magistrate or the concerned Judge, Family Court, under Section 126 (2) CrPC, a revision plea can be preferred before the HC under Section 19(4) of the Family Courts Act, 1984.

Briefly put, the Court was hearing a criminal revision filed by a husband challenging an ex parte judgment and order passed by the Principal Judge of the Family Court in Deoria, allowing the wife's application u/s 125 CrPC.

The family court had directed the husband-revisionist to pay a monthly maintenance of Rs 4,000 to his wife and Rs 2,000 each to his two minor children.

After perusing the record, the High Court noted that the ex parte order was passed by the family court in accordance with the law after the due service of notice and that the husband had an efficacious and alternative statutory remedy available.

The Court added that without availing the statutory remedy under Section 126 (2) CrPC/Section 145 (2) BNSS, the present revision was not maintainable and was liable to be dismissed on the ground of maintainability.

The bench clarified that the BNSS and CrPC allow a party to show sufficient cause for setting aside the ex parte proceedings and seeking an opportunity to contest the case on its merits.

The bench further clarified that if any order is eventually passed by the Judicial Magistrate or the Family Court Judge under Section 126(2) CrPC, the same can be challenged in revision under Section 19(4) of the Family Courts Act, 1984.

Thus, dismissing the plea, the Court directed the revisionist to approach the concerned family court.

The High Court also clarified that in case of any delay in approaching the trial court, the husband is free to move an appropriate application for the condonation of delay, which the lower court shall consider in accordance with the law.