Section 125 CrPC | Ex Parte Maintenance Orders Must Be Set Aside on Compliance with Arrears: Allahabad HC Emphasizes Natural Justice

In a significant ruling on procedural fairness, the Allahabad High Court has set aside an ex parte maintenance order under Section 125 of the Code of Criminal Procedure (CrPC), emphasizing that such orders cannot stand when the respondent was unaware of the proceedings. The Court directed the payment of arrears in installments and remitted the matter for fresh adjudication, underscoring the need for natural justice in family law disputes.

Background & Facts

The Dispute

The applicant, Satendra Singh, challenged the proceedings initiated under Section 147 of the Bharatiya Nyaya Sanhita (BNSS) for the recovery of maintenance arrears awarded to his wife, Smt. Madhu, and their minor child. The maintenance order was passed ex parte by the Family Court on 16.01.2025, directing the applicant to pay Rs. 5,000 per month from the date of the application without considering his income or financial capacity.

Key Facts

• The applicant and opposite party No. 2 (Smt. Madhu) were married, and the opposite party had filed an application under Section 125 CrPC for maintenance.
• The Family Court passed an ex parte order on 16.01.2025, awarding Rs. 5,000 per month as maintenance to the wife and minor child.
• The applicant claimed he was unaware of the proceedings and had made efforts to reconcile with his wife, who had deserted him.
• Due to non-payment of maintenance, recovery proceedings were initiated under Section 147 BNSS (Case No. 98 of 2025).
• The applicant contended that the ex parte order was unjust as it did not account for his financial situation.

Procedural History

• 16.01.2025: Family Court passed ex parte maintenance order under Section 125 CrPC.
• 2025: Recovery proceedings initiated under Section 147 BNSS (Case No. 98 of 2025).
• 2026: Applicant filed an application under Section 528 BNSS before the Allahabad High Court for quashing the recovery proceedings.
• 07.05.2026: High Court disposed of the application with directions for compliance.

Positions Before This Court

For the Applicant

• The ex parte order was unjust as it did not consider the applicant's income or financial capacity.
• The applicant was unaware of the proceedings and had not been served notice effectively.
• The applicant was willing to pay Rs. 2,00,000 towards arrears and continue paying monthly maintenance, provided the matter was remitted for fresh adjudication.

For the Respondent/State

• The Family Court had issued notice to the applicant, but he failed to appear, leaving the court no option but to proceed ex parte.
• The recovery proceedings under Section 147 BNSS were justified as the applicant had not complied with the maintenance order.

Relief Sought

The applicant sought:

• Quashing of the recovery proceedings under Section 147 BNSS.
• Setting aside the ex parte maintenance order dated 16.01.2025.
• Remittal of the matter to the Family Court for fresh adjudication under Section 125 CrPC.
• Protection from coercive action upon compliance with the payment of arrears.

The Legal Issue

The central question was whether an ex parte maintenance order under Section 125 CrPC could be set aside when the respondent was unaware of the proceedings, and whether recovery proceedings under Section 147 BNSS could be quashed upon compliance with payment of arrears.

Arguments Presented

For the Applicant

• The ex parte order was passed without considering the applicant's income, violating principles of natural justice.
• The applicant was unaware of the proceedings, and the recovery proceedings under Section 147 BNSS were unjust.
• Reliance was placed on the principle that procedural fairness must be adhered to, even in maintenance cases.

For the Respondent/State

• The Family Court had issued notice to the applicant, and his non-appearance justified the ex parte order.
• The recovery proceedings were valid as the applicant had failed to comply with the maintenance order.

The Court's Analysis

The Court observed that the ex parte order was passed without the applicant's participation, which raised concerns about procedural fairness. The Court emphasized that while maintenance orders are intended to provide speedy relief to dependents, they must also ensure that the respondent is given a fair opportunity to present his case.

The Court relied on the precedent set in Rajnesh v. Neha and Another (2021 (2) SCC 324), which lays down guidelines for determining maintenance under Section 125 CrPC. The judgment underscores the need for courts to consider the financial capacity of both parties before awarding maintenance.

"Considering the submissions advanced by learned counsel for the parties as well as the fact that the impugned order has been passed without participation of the applicant in the proceedings of Section 125 Cr.P.C. and the recovery proceeding has also been initiated against him, this Court is of the view, that in interest of justice, one last opportunity may be granted to applicant to participate in the proceedings."

The Court further noted that the applicant had expressed willingness to pay the arrears and continue paying monthly maintenance, provided the matter was remitted for fresh adjudication. This willingness to comply was a key factor in the Court's decision to set aside the ex parte order and recovery proceedings.

The Verdict

The Allahabad High Court disposed of the application under Section 528 BNSS with the following directions:

1. The impugned ex parte judgment and order dated 16.01.2025, as well as the subsequent recovery proceedings under Section 147 BNSS, were set aside, subject to the applicant's compliance with the payment of arrears.
2. The applicant was directed to deposit the entire due amount towards arrears of maintenance in four equal installments:
   • First installment on or before 07.06.2026.
   • Second installment on or before 07.07.2026.
   • Third installment on or before 07.08.2026.
   • Fourth installment on or before 07.09.2026.
3. The applicant was also directed to continue paying the monthly maintenance of Rs. 5,000 by the 15th day of each calendar month, starting from May 2026.
4. Upon deposit of the first installment, the Family Court was directed to adjudicate the matter afresh within three months, preferably on a day-to-day basis.
5. The amount deposited by the applicant was to be paid to the opposite party No. 2 after verification by the concerned court.
6. No coercive action was to be taken against the applicant if he complied with the payment schedule.
7. Failure to comply with any part of the order would result in the automatic vacation of the protection granted, and the court would proceed against the applicant in accordance with law.

What This Means For Similar Cases

Procedural Fairness Must Be Ensured

This judgment reinforces the principle that ex parte orders, even in maintenance cases, must not violate the principles of natural justice. Courts must ensure that respondents are given a fair opportunity to present their case before passing orders that have significant financial implications.

• Opportunity to be heard: Even in cases where notice is issued, courts must verify whether the respondent was genuinely unaware of the proceedings before proceeding ex parte.
• Remittal for fresh adjudication: Where ex parte orders are set aside, courts may remit the matter for fresh adjudication to ensure fairness.

Compliance Can Avert Coercive Action

The Court's willingness to set aside recovery proceedings upon compliance with payment of arrears highlights the importance of cooperation from respondents in maintenance disputes.

• Installment payments: Courts may allow payment of arrears in installments to ease the financial burden on respondents while ensuring compliance.
• Protection from coercive action: Compliance with payment schedules can protect respondents from coercive measures such as arrest or attachment of property.

Financial Capacity Must Be Considered

The judgment underscores the need for courts to consider the financial capacity of both parties before awarding maintenance. This aligns with the guidelines laid down in Rajnesh v. Neha and Another.

• Income assessment: Courts must assess the income and financial capacity of the respondent before fixing maintenance amounts.
• Proportionality: Maintenance awards should be proportional to the respondent's ability to pay, ensuring they do not become unduly burdensome.