Revision Against Ex-Parte Maintenance Order Not Maintainable Without Seeking Recall From Trial Court: Madhya Pradesh High Court

"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 the Code," Madhya Pradesh High Court, in a significant ruling, held that a criminal revision challenging an ex-parte maintenance order is not maintainable if the aggrieved party has not first exhausted the statutory remedy of seeking a recall of that order before the Trial Court.

A single-judge bench of Justice Dwarka Dhish Bansal observed that the power to set aside an ex-parte order is specifically vested in the Magistrate or the Family Court under the proviso to Section 126(2) of the CrPC (corresponding to Section 145(2) of the BNSS).

The court emphasized that instead of directly approaching the High Court in its revisional jurisdiction, a husband aggrieved by an ex-parte maintenance decree must show "sufficient cause" for his non-appearance before the original court that passed the order.

The petitioner-husband had filed a criminal revision challenging an order passed by the Principal Judge, Family Court, Sidhi, which had awarded monthly maintenance of Rs. 3,000 to his wife and Rs. 1,000 each to their four minor children. The husband contended that the Family Court committed an illegality by passing an ex-parte order despite an alleged compromise between the parties. He argued that he stopped appearing before the court under the impression that the matter was settled, leading to the ex-parte proceedings.

The primary question before the court was whether a criminal revision is maintainable against an ex-parte maintenance order when the petitioner has not yet availed the alternative statutory remedy for recalling the order. The court also examined the interplay between the provisions of the Code of Criminal Procedure (CrPC), the Bharatiya Nagarik Suraksha Sanhita (BNSS), and the Family Courts Act, 1984.

Ex-Parte Orders Must Be Challenged Via Recall Application First

The Court observed that the petitioner was proceeded against ex-parte on January 27, 2025, after which evidence was recorded and the final maintenance order was passed on April 9, 2025. Justice Bansal noted that the legality of the ex-parte proceedings cannot be scrutinized in a criminal revision at the first instance when a specific alternative remedy exists under the law.

The bench clarified that the petitioner possesses a statutory remedy under the proviso to Section 126(2) of the CrPC or Section 145(2) of the BNSS to move the Trial Court for setting aside the ex-parte order.

Power To Recall Vests In The Trial Court

Drawing support from recent jurisprudence, the Court cited a coordinate bench decision of the Allahabad High Court in Anup Kumar vs. Pratibha Kushwaha (2026). In that case, it was held that the jurisdiction to recall an ex-parte order under Section 144 BNSS (formerly Section 125 CrPC) is vested in the Judicial Magistrate or the Family Court.

The Court noted that only after an order is passed by the Family Court on such a recall application can a revision be preferred before the High Court under Section 19(4) of the Family Courts Act, 1984.

High Court Follows Established Precedents On Non-Maintainability

The Court further relied on a 1984 precedent of the Madhya Pradesh High Court in Vanita vs. Manakchandra, which held that a revision petition is not maintainable unless the husband had first applied to the Magistrate to set aside the order. The bench highlighted that the wording of the new procedural laws remains parallel to the old codes regarding this specific requirement.

Justice Bansal reiterated that it is more convenient and legally sound for the parties to seek a merit-based contest by showing "sufficient cause" for their absence before the Trial Court rather than seeking a direct reversal through revision.

Directing Recourse To Section 145(2) BNSS

"The petitioner is directed to approach the concerned Family Court and move an application under Section 145(2) B.N.S.S. for recalling the order."

The Court ultimately held the instant criminal revision to be not maintainable. However, it reserved liberty for the petitioner to file an appropriate application under Section 145(2) of the BNSS or Section 126(2) of the CrPC before the Family Court.

Interim Protection To Prevent Imprisonment

In a notable observation, the Court was informed that the petitioner was being regularly imprisoned due to the non-payment of the awarded maintenance. To ensure he could effectively pursue his legal remedy, the Court granted him a 10-day window to file the recall application.

The Court directed that if such an application is filed by May 8, 2026, the petitioner shall be released immediately and shall not be sent to prison until the decision on the recall application. The Court clarified that maintenance recovery could still be sought through the petitioner's immovable property.

The High Court dismissed the revision as not maintainable while granting the petitioner the liberty to seek a recall of the ex-parte order before the Family Court. The ruling reinforces the principle that extraordinary or revisional jurisdictions should not be invoked when specific statutory remedies for procedural grievances are available at the trial level.

Date of Decision: 28 April 2026