The Madhya Pradesh High Court has affirmed that the right to lead evidence in a maintenance proceeding under Section 125 Cr.P.C. cannot be summarily extinguished on technical grounds of non-appearance, especially when the opposing party has taken years to complete its evidence. The judgment reinforces procedural fairness in family law proceedings and clarifies the scope of Section 528 of the Bharatiya Nagrik Suraksha Sanhita, 2023.
Background & Facts
The Dispute
The petitioner, Jammu Kumar Bhansali, is the husband in a maintenance proceeding initiated by his wife, Smt. Khushabu Bhansali, and their minor daughter under Section 125 of the Code of Criminal Procedure, 1973. The application was filed in 2021 before the Family Court, Indore. The petitioner was granted an opportunity to lead evidence, but his right to do so was closed on 26.03.2026 after he failed to appear in court. The Family Court treated this absence as a waiver of his right to adduce evidence, despite the fact that the respondent wife had only closed her evidence on 11.03.2026 - nearly five years after the case was filed.
Key Facts
- The maintenance application was filed in 2021.
- An interim order for maintenance was passed on 19.07.2022, fixing Rs. 14,000 per month (Rs. 11,000 for wife, Rs. 3,000 for daughter).
- The petitioner has allegedly not paid any amount towards interim maintenance, a claim disputed by his counsel.
- The respondent wife’s evidence was recorded over multiple dates and finally closed on 11.03.2026.
- On 11.03.2026, the Family Court granted the petitioner a "last opportunity" to lead evidence, fixing the next date as 26.03.2026.
- On 26.03.2026, the petitioner did not appear, citing that his father had suffered a fracture due to an accident in Chennai, and he was attending to him.
- No proof of the accident was produced before the Family Court or before the High Court.
- The petitioner’s counsel admitted ignorance regarding the exact amount paid towards interim maintenance.
Procedural History
- 2021: Maintenance application filed under Section 125 Cr.P.C. before Family Court, Indore (Misc. Judicial Criminal Case No. 567/2021).
- 19.07.2022: Interim maintenance order passed for Rs. 14,000 per month.
- 11.03.2026: Respondent wife closed her evidence; petitioner granted last opportunity to lead evidence.
- 26.03.2026: Petitioner failed to appear; Family Court closed his right to lead evidence.
- 07.05.2026: Petitioner filed M.Cr.C. No. 16615/2026 under Section 528 BNSS before the Madhya Pradesh High Court.
The Parties' Positions
Petitioner’s Position: The closure of evidence was arbitrary and violative of natural justice. The respondent had taken five years to complete her evidence, while the petitioner was given only one opportunity. The non-appearance was due to a genuine family emergency. The Court should have imposed a cost, not extinguished the right to lead evidence.
Respondent’s Position: The petitioner has been dilatory since 2021. He has not paid any interim maintenance despite court orders. He has not produced any proof of his father’s accident. The petition is not maintainable under Section 528 BNSS, as the order was passed on an application under Order XVII Rule 1 CPC, which is civil in nature.
Relief Sought
The petitioner sought setting aside of the Family Court’s order dated 26.03.2026, which closed his right to lead evidence, and restoration of his opportunity to adduce evidence in the maintenance case.
The Legal Issue
The central question was whether Section 528 of the Bharatiya Nagrik Suraksha Sanhita, 2023 permits a High Court to review an order closing the right to lead evidence in a maintenance proceeding under Section 125 Cr.P.C., and whether such closure without granting a meaningful opportunity violates the principles of natural justice.
Arguments Presented
For the Petitioner
The petitioner’s counsel argued that proceedings under Section 125 Cr.P.C. are criminal in nature, and therefore, the Family Court’s order closing evidence was subject to revision under Section 528 BNSS. The petitioner was not given a reasonable opportunity to explain his absence, and the Family Court acted in haste. The respondent had taken five years to complete her evidence, making the denial of opportunity to the petitioner manifestly unfair. The Court should have imposed a cost, not extinguished the right to lead evidence.
For the Respondent
The respondents’ counsel contended that the petition was not maintainable under Section 528 BNSS because the Family Court’s order was passed on an application filed under Order XVII Rule 1 CPC, which pertains to civil procedure. Therefore, the appropriate remedy was a writ under Article 227 of the Constitution. Further, the petitioner’s conduct was dilatory - he had not paid interim maintenance despite a court order, and he failed to produce any documentary proof of his father’s accident.
The Court's Analysis
The Court first addressed the issue of maintainability. It held that despite the erroneous reference to the CPC in the adjournment application, the underlying proceeding was a criminal one under Section 125 Cr.P.C. The nature of the proceeding is determined by the substantive law invoked, not the procedural form used. Therefore, Section 528 BNSS, which provides revisional jurisdiction over criminal proceedings, was applicable.
"Merely if an application has been filed for adjournment erroneously referring to CPC, it would not make it a civil case or an order passed under CPC."
The Court then examined the fairness of the Family Court’s decision. It noted that the respondent had taken nearly five years to complete her evidence, while the petitioner was given only one opportunity, and that too after a long delay. The Court observed that the petitioner’s absence, even if unexplained, did not justify the total denial of his right to lead evidence.
"In such circumstances, and also taking into account the fact that according to the respondent the petitioner has not paid any amount towards the interim maintenance, which is also disputed by the counsel for the petitioner, it is directed that subject to deposit of 50% of the amount due in the Trial Court, within a period of one month, the petitioner shall be allowed to lead evidence."
The Court rejected the extreme remedy of extinguishing the right to evidence and instead adopted a balanced approach - allowing the petitioner to lead evidence upon deposit of 50% of the alleged arrears, with a clear warning that default would result in final closure of his opportunity.
The Verdict
The petition was allowed. The Family Court’s order closing the petitioner’s right to lead evidence was set aside. The petitioner is granted an opportunity to lead evidence, subject to deposit of 50% of the alleged arrears of interim maintenance (Rs. 14,000 per month from 19.07.2022 to date) within one month from the date of judgment. In case of default, no further opportunity shall be granted, and the Family Court shall proceed ex parte. Costs are left to the trial court’s discretion.
What This Means For Similar Cases
Procedural Fairness Trumps Technical Non-Appearance
- Practitioners must argue that non-appearance in maintenance cases, even if unexplained, cannot automatically result in the extinguishment of the right to lead evidence.
- Courts must weigh the duration of proceedings, the conduct of both parties, and the gravity of denying a substantive right.
- Imposition of costs is a proportionate remedy; total denial of evidence is not.
Section 528 BNSS Applies to All Section 125 Proceedings
- Even if an application is mislabeled under CPC provisions, the nature of the proceeding governs the remedy.
- Revision under Section 528 BNSS is available against orders in Section 125 Cr.P.C. cases, regardless of procedural missteps.
- Article 227 petitions are not the exclusive remedy for interlocutory orders in criminal maintenance proceedings.
Deposit as Condition for Restoration Is a Valid Compromise
- Courts may conditionally restore procedural rights upon partial compliance with interim orders.
- This approach balances the need for compliance with the right to be heard.
- Practitioners should advise clients to deposit partial arrears proactively to preserve evidentiary rights.
