Ramratan Rajak vs Guddu Rajak And Others

Dwarka Dhish Bansal, J

This criminal revision has been preferred by the petitioner/husband challenging the order dated 09.04.2025 passed by Principal Judge, Family Court, Sidhi in MJCr no.56/2024, whereby the Family Court has allowed an application under Section 125 of Cr.P.C. filed by the respondents (wife and four minor children) and awarded an amount of Rs.3,000/- to respondent 1 (wife) and Rs.1,000/- each to respondents 2 to 5, towards monthly maintenance.

Learned counsel for the petitioner/husband submits that the Family Court has committed an illegality in passing the impugned order and in awarding the aforesaid amount of maintenance without taking into consideration the factum of compromise, as contained in interim order dated 12.11.2024 of the Family Court. He also submits that since both the parties had compromised the matter, therefore, after 21.01.2025 the petitioner did not appear before the Family Court and exparte impugned order was passed by the Family Court on the basis of exparte evidence of the respondents, which in the facts and circumstances of the case deserve to be set aside by allowing the instant criminal revision.

Heard learned counsel for the petitioner/husband and perused the record.

As has been argued by learned counsel for the petitioner/husband and as is also mentioned in the impugned order itself that the petitioner/husband was proceeded exparte vide order dated 27.01.2025 and thereafter exparte evidence of the respondents was recorded and then impugned exparte order was passed on 09.04.2025 awarding the aforesaid amount of maintenance.

As to whether the petitioner was proceeded exparte rightly/legally or otherwise, cannot be gone into in the present criminal revision and the petitioner is having alternative statutory remedy under proviso to Section 126(2) of CrPC or Section 145(2) of BNSS.

Recently a coordinate Bench of Allahabad High Court has, in the case of Anup Kumar vs. Pratibha Kushwaha, 2026 SCC OnLine All 1423, held as under :

"8. This Court is of the opinion that against the ex-parte order passed under Section 144 B.N.S.S. (corresponding Section 125 CrPC), the jurisdiction is vested in the Judicial Magistrate or the Family Court to recall the order under Section 145(2) B.N.S.S. (corresponding Section 126(2) CrPC), therefore, the power should be exercised by the Judicial Magistrate or the Family Court rather than by filing a revision before this Court and if any order is passed by the Judicial Magistrate or the concerned Judge, Family Court, under Section 145(2) B.N.S.S., thereafter the revision should be preferred before this Court under Section 19(4) of the Family Courts Act, 1984 . The provisions of Section 19 of the Family Courts Act are delineated below:

"19. Appeal.- (1) Save as provided in sub-section (2) and notwithstanding anything contained in the Civil Procedure Code, 1908 (5 of 1908) or in the Criminal Procedure Code, 1973 (2 of 1974) or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law.

(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties or from an order passed under Chapter IX of the Criminal Procedure Code, 1973 (2 of 1974) : Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991 (59 of 1991).

(3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court.

(4) The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Criminal Procedure Code, 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and, as to the regularity of such proceeding.

(5) Except as aforesaid, no appeal or revision shall lie to any court from any judgment, order or decree of a Family Court.

(6) An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges."

Considering the facts and circumstances of the case and submissions made by learned counsel for the parties, this Court finds that the order dated 20-8-2025 passed by the principal Judge, Family Court, Jhansi, is a n ex-parte order granting Rs 30,000 per month maintenance to the wife, which has been passed after due service of notice upon the revisionist.

This Court further finds that a specific statutory remedy is available under Section 145(2) of the B.N.S.S. for setting aside such ex-parte order before the trial court itself by showing sufficient cause and seeking an opportunity to contest the case on merits. However, in the present case, instead of availing the aforesaid statutory remedy, the revisionist has directly approached this Court by way of the present revision, which, in the considered opinion of this Court, is not in consonance with the provisions of Section 145(2) of the B.N.S.S. Therefore, the revisionist is directed to approach the concerned Family Court and move an application under Section 145(2) B.N.S.S. for recalling the order dated 20-8-2025."

A coordinate Bench of this Court also in the case of Vanita vs. Manakchandra, 1984 MPWN 113=1983 Supreme (MP) 42, has held as under :

"However, instead of making any application for setting aside the ex-parte order, under section 126 (2) of the Code, the non-petitioners found it more convenient to file a revision petition before the Session Judge. The learned Sessions Judge appears to have overlooked the provisions of sub-section (2) to section 126 Code of Criminal Procedure and while noting the consistent absence of non-petitioner No. 1 in course of the proceedings before the trial Court, has still thought it fit to set-aside the order granting maintenance and has remanded the case, subject to payment of costs Rs. 200/-. In this connection, the learned counsel for the petitioner also cited the case of State of Mysore vs. Chousuddin & another, 1972 Cr.L.J. 808, wherein it has been ruled that a revision petition against the ex-parte order of maintenance is not maintainable unless the husband before coming in revision, had applied to the Magistrate to set-aside the ex-parte order as required under the provision of sub-section (2) to section 488 Cr.P.Code. The wording of sub-section (2) to section 126 of the Code of Criminal Procedure, 1973; are parallel to those of sub-section (6) to Section 488 of the old Code, and I am very much inclined to take the same view in this case. All the more so, in view of the facts narrated above. As such, the revision filed on behalf of the non-petitioners before the Sessions Judge, Vidisha was not maintainable, and as such, the impugned order dated 6-9-79 passed by the learned Sessions Judge is liable to be set-aside. 1972 Cr.L.J. 808 relied on. Revision allowed."

In view of the aforesaid legal and factual position about the exparte impugned order passed under Section 125 of CrPC, instant criminal revision is held to be not maintainable.

Accordingly, the criminal revision is hereby dismissed as not maintainable.

However, liberty is reserved with the petitioner/husband to file appropriate application under Section 145(2) of BNSS/126(2) of Cr.P.C., praying for setting aside the exparte impugned order.

It is also made clear that this Court has not expressed any opinion on merits and demerits of the case.

Registry is directed to return the certified copy of the impugned order to learned counsel for the petitioner after retaining its photocopy on record.

Pending application(s), if any, shall stand disposed of.

It has been informed by learned counsel for the petitioner that due to non-payment of monthly maintenance, the petitioner is being sent regularly to the imprisonment and still he is in imprisonment. In view of this, it is observed that, if the petitioner files a duly constituted application under Section 126(2) of CrPC/145(2) of BNSS within a period of 10 days. i.e. on or before 08.05.2026, he shall be released immediately (if he is not required in any other case) and shall not be sent again in imprisonment till the decision of the said application under Section 126(2) of CrPC/145(2) of BNSS. Needless to mention that, the recovery of maintenance amount can be made from an immovable property, owned by the petitioner/husband, if any.

It is also apt to mention that the direction contained in para 14 of this order i.e. in respect of release of the petitioner from imprisonment, shall not be treated as a precedent.