Striking Off Husband's Defence For Default In Interim Maintenance Does Not Extinguish Right To Cross-Examine Wife: Madhya Pradesh High Court Under Section 125 CrPC

"It is pertinent to mention here that it is also an established principle of law that uncrossed/untested testimony cannot be relied upon in support of the averments made in the pleadings." In a significant ruling protecting the statutory rights of litigants facing maintenance claims, the Madhya Pradesh High Court held on October 26, 2026, that an order striking off a husband's defence for non-payment of interim maintenance does not empower the Family Court to extinguish his statutory right to cross-examine the wife and her witnesses under Section 125 of the Code of Criminal Procedure, 1973 (CrPC).

Justice Dwarka Dhish Bansal observed that untested and uncrossed testimony cannot form the foundation for determining final maintenance awards.

The petitioner husband challenged an order dated February 1, 2016, passed by the Second Additional Principal Judge, Family Court, Bhopal, in Miscellaneous Criminal Case No. 188/2015, which granted monthly maintenance of Rs. 8,000 to the wife and Rs. 5,000 to their minor daughter under Section 125 CrPC. During the proceedings, the Family Court awarded interim maintenance of Rs. 2,500 to the wife and Rs. 1,000 to the daughter. Due to the husband's partial non-compliance with the interim maintenance order, the Family Court struck off his defence and concurrently closed his right to cross-examine the wife and her witness before proceeding to final adjudication.

Whether a Family Court exercising jurisdiction under Section 125 CrPC has the legal authority to close a husband's right to cross-examine the claimant witnesses upon default in paying interim maintenance pendente lite?

Whether an order striking off a party's defence completely debars that party from testing the credibility and veracity of the applicant's evidence through cross-examination?

Striking off defence operates only as a measure of last resort against contumacious default

Examining the ambit of judicial power to penalize defaults in interim maintenance, the High Court adverted to the Supreme Court's landmark judgment in Rajnesh v. Neha. The Court highlighted that while a defaulting husband may face the striking off of his defence if the non-compliance is wilful and contumacious, this power represents an exceptional sanction. The bench underscored that courts cannot expand this measure to completely divest a party of basic procedural safeguards.

A party whose defence is struck off retains the right to cross-examine opposing witnesses

Justice Bansal analyzed the legal ramifications flowing from an order striking off a defence, drawing support from the Supreme Court's decision in Modula India v. Kamakshya Singh Deo and the Bombay High Court's ruling in Sonali Ramchandran Ayyar v. Ramachandran Venkatraman Ayyar. The Court emphasized that striking off a defence under principles analogous to Order 11 Rule 21 CPC merely precludes a defendant from asserting positive pleas or adducing independent affirmative evidence. It does not disenfranchise the litigant from participating in proceedings to expose infirmities in the applicant's case.

"Even when a defence is struck off the defendant is entitled to appear, crossexamine the plaintiff's witnesses and submit that even on the basis of the evidence on behalf of the plaintiff a decree cannot be passed against him..."

Untested oral testimony cannot form the basis of a judicial order under Section 125 CrPC

The Court observed that reliance on evidence that has not been subjected to the test of cross-examination violates fundamental tenets of justice. When a husband and his counsel are present before the court, an order denying the opportunity to cross-examine claimant witnesses impairs the integrity of the fact-finding process. Relying on coordinate bench precedent in Ghasiti Bai v. Ram Gopal Singh, the Court affirmed that uncrossed depositions cannot sustain findings on contested averments.

"In view of the aforesaid factual scenario, discussion and legal position settled relating to consequences of order striking off the defence, this Court is of the considered opinion that the Family Court has committed an illegality in closing right of the petitioner to cross examine the respondent 1 and her witness."

The High Court partly allowed the criminal revision, set aside the Family Court's final maintenance order dated February 1, 2016, and remanded the matter back to the Family Court, Bhopal. The Family Court was directed to restore the Section 125 CrPC application to its original file and decide the dispute afresh after affording the husband an opportunity to cross-examine the wife and her witness, while holding him liable to continue paying the interim maintenance pendente lite fixed on June 23, 2015.

Date of Decision: October 26, 2026