144 BNSS | Husband Cannot Directly Challenge Ex-Parte Maintenance Order In High Court, Must Apply For Recall: Allahabad High Court

"Against the ex-parte order passed under Section 144 B.N.S.S... the jurisdiction is vested in the Judicial Magistrate or the Family Court to recall the order under Section 145(2) B.N.S.S... therefore, the power should be exercised by the Judicial Magistrate or the Family Court rather than by filing a revision before this Court." Allahabad High Court, in a significant ruling, held that an ex-parte maintenance order passed under Section 144 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) cannot be directly challenged through a criminal revision in the High Court.

A single-judge bench of Justice Praveen Kumar Giri observed that an aggrieved party must first exhaust the specific statutory remedy available under Section 145(2) of the BNSS by moving an application before the trial court to recall the ex-parte proceedings.

The dispute arose when the Principal Judge of the Family Court in Jhansi passed an ex-parte order directing the revisionist-husband, a retired Air Force personnel, to pay a monthly maintenance of Rs. 30,000 to his wife. The order was issued after the husband failed to appear before the court despite due service of notice. Without approaching the Family Court to set aside the ex-parte proceedings, the husband directly filed a criminal revision before the High Court seeking to quash the maintenance direction.

The primary question before the court was whether a criminal revision directly challenging an ex-parte maintenance order under Section 144 of the BNSS is maintainable before the High Court. The court was also called upon to determine the proper procedural recourse and hierarchy for a party aggrieved by such an ex-parte direction.

Maintainability and Alternative Remedy

The court examined the maintainability of the revision petition in light of the new statutory framework of the BNSS. Noting that the Family Court passed the maintenance order after ensuring due service of notice upon the husband, the bench clarified that a direct challenge before the High Court is procedurally improper. The judge emphasised that the revisionist is legally required to move an application under Section 145(2) of the BNSS before the trial court to set aside the ex-parte proceedings and formally request an opportunity to contest the case on its merits.

"Thus, without availing such statutory remedy, the present revision is not maintainable and is liable to be dismissed on the ground of maintainability."

"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."

Jurisdictional Mechanics Under BNSS

Delving into the jurisdictional mechanics of Sections 144 and 145 of the BNSS, which correspond to Sections 125 and 126 of the erstwhile Code of Criminal Procedure, the court outlined the correct hierarchical approach. The bench highlighted that the inherent power to recall an ex-parte maintenance order securely vests in the Judicial Magistrate or the Family Court that passed the initial direction. It was further clarified that a revision to the High Court under Section 19(4) of the Family Courts Act, 1984, would only become maintainable against a subsequent order passed by the trial court on that recall application.

"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."

Liberty for Condonation of Delay

Recognising the procedural lapse committed by the revisionist, the court provided a clear pathway for rectifying the error while protecting his substantive right to be heard. The bench directed the husband to approach the Family Court in Jhansi with an appropriate application for recall under the BNSS. Furthermore, the court noted that if the statutory period to file such an application had lapsed, the husband retained the right to seek condonation of delay, which the lower court would evaluate strictly in accordance with the law.

"In case there is any delay in approaching the trial court, it shall be open to the revisionist to move an appropriate application for condonation of delay along with affidavit, if so permissible under law, and the same shall be considered by the concerned court in accordance with law."

Ultimately, the High Court dismissed the criminal revision entirely on the ground of the availability of an efficacious alternative remedy. The revisionist was granted liberty to approach the Family Court in accordance with the law to seek the formal recall of the ex-parte maintenance order.

Date of Decision: 30 March 2026