Wilful Avoidance of Service Must Be Established Before Passing Ex Parte Order Under Section 126(2) CrPC: Patna High Court Sets Aside Ex Parte Maintenance Order

Patna High Court, in the case of Avinash Kumar @ Abinash Kumar v. The State of Bihar & Rashmi Kumari, ruled in favor of the petitioner, setting aside an ex parte order of maintenance. The Court held that the Family Court had failed to comply with the requirements under Section 126(2) of the Code of Criminal Procedure, 1973 (CrPC) before proceeding ex parte in a maintenance case filed under Section 125 CrPC. The judgment remits the case back to the Family Court, Begusarai, for a fresh hearing.

The case arose from a maintenance application filed by the wife, Rashmi Kumari, under Section 125 CrPC, wherein the Family Court, Begusarai, had passed an ex parte order on 6 July 2023. The order directed the petitioner, Avinash Kumar, to pay a monthly maintenance of Rs. 10,000. The petitioner challenged the decision in the Patna High Court, claiming that he had not been duly notified of the proceedings, and the Family Court had failed to determine whether his absence was wilful.

The primary legal issue before the Patna High Court was whether the Family Court had followed the necessary procedural requirements under Section 126(2) CrPC before passing the ex parte order. The petitioner argued that the Family Court did not serve proper notice, and there was no finding that his absence from court was wilful, as required by the law.

The Court noted that Section 126(2) CrPC mandates that an ex parte order can only be passed if the court is satisfied that the respondent is "wilfully avoiding service" or "wilfully neglecting to attend the court." A plain reading of the statute, as emphasized in the judgment, highlights the necessity of the court recording its satisfaction that such wilful avoidance or neglect had occurred.

"Mere knowledge of the maintenance case's submission is insufficient; information about the specific dates of the hearing is also required." [Para 12]

The Court found that the Family Court did not record any findings that the petitioner had wilfully avoided service or neglected to attend the proceedings. Despite the Family Court’s acknowledgment that the petitioner had general knowledge of the case's existence, there was no documentation to show that he had been informed of the specific dates on which the hearings were scheduled.

"There is no material available on record which shows that the petitioner has any knowledge of fixing of the maintenance case on 07.06.2023, the date on which an ex parte proceeding was drawn against him." [Para 12]

Due to the Family Court’s failure to comply with the requirements under Section 126(2) CrPC, the High Court held that the ex parte order dated 6 July 2023 was legally unsustainable and, accordingly, set it aside.

The High Court allowed the revision petition, quashing the ex parte order of maintenance. The case was remitted back to the Family Court, Begusarai, to be heard afresh, with both parties directed to appear before the court on 12 November 2024 for further proceedings.

Date of Decision: 18 September 2024

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