126(2) Cr.P.C. | Ex parte order unsustainable where no proof of wilful avoidance of service or neglect to attend court: Patna High Court

Patna High Court set aside an ex parte maintenance order passed by the Family Court, Begusarai. The court held that the Family Court had failed to comply with Section 126(2) of the Code of Criminal Procedure (Cr.P.C.), 1973, by not establishing that the petitioner-husband had wilfully avoided service or neglected to attend the proceedings.
The petitioner-husband filed a revision petition against an ex parte order dated July 6, 2023, passed by the Family Court, Begusarai, in Maintenance Case No. 145 of 2022. In the ex parte order, the Family Court directed the petitioner to pay a monthly maintenance of ₹10,000 to his estranged wife under Section 125 Cr.P.C.
The petitioner contended that the Family Court proceeded to pass the ex parte order without giving him adequate notice of the hearing dates, nor was there any finding that he wilfully avoided attending the proceedings. He argued that the Family Court violated Section 126(2) Cr.P.C., which mandates that the court be satisfied about wilful avoidance of service before passing an ex parte order.
Non-Compliance with Section 126(2) Cr.P.C.: Section 126(2) Cr.P.C. requires that a court must be satisfied that the person against whom a maintenance order is sought has wilfully avoided service or neglected to attend court before proceeding ex parte. The court emphasized that mere knowledge of the maintenance case was not sufficient; the petitioner must be informed of specific hearing dates.
The Court observed: “Before proceeding ex parte, the learned Magistrate is required to satisfy that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service or wilfully neglecting to attend the Court” [Para 11].
Service of Notice and Right to be Heard: The Court noted that there was no evidence on record showing that the petitioner was served with notice of the hearing dates. The Family Court also failed to record any finding that the petitioner wilfully neglected to attend court or avoided service. The Patna High Court held that the Family Court's order was unjustified as it violated the petitioner's right to be heard.
“The Family Court did not make any observation that the Court is satisfied that the petitioner wilfully neglected to attend the Court. Mere knowledge of the maintenance case is not sufficient, but information about the date fixed by the learned Trial Court to the petitioner is also required” [Para 12].
Details of the Judgment
The Patna High Court carefully examined the records of the Family Court and found no proof that the petitioner was adequately informed of the hearing dates. The absence of proper service of notice and failure to prove wilful neglect resulted in a violation of procedural fairness. Consequently, the High Court set aside the ex parte order and remitted the case back to the Family Court for fresh consideration, ensuring that both parties are given the opportunity to be heard.
The Court ruled: “On this ground only the impugned ex parte order passed by the Family Court is liable to be set aside. Accordingly, this revision petition is allowed. The impugned order dated 06.07.2023 is set aside. The matter is remitted back to the Family Court, Begusarai to decide the above maintenance case afresh after giving appropriate opportunity of hearing to both parties” [Para 13].

The Patna High Court allowed the revision petition and set aside the ex parte maintenance order, reiterating the importance of following procedural fairness under Section 126(2) Cr.P.C. The matter has been remitted back to the Family Court, Begusarai, for fresh adjudication, and both parties are directed to appear before the Family Court on November 12, 2024.

Date of Decision: September 18, 2024

XXX v. The State of Bihar & Ors.