The High Court of Judicature at Allahabad has dismissed a criminal revision filed by a husband against an ex-parte maintenance order, ruling that the revision is not maintainable when an efficacious alternative remedy exists under Section 145(2) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. Justice Praveen Kumar Giri held that the jurisdiction to recall an ex-parte order rests with the trial court or Family Court before which the proceedings originated.
Background of the Case
The revisionist, a retired Air Force personnel, challenged an ex-parte judgment and order dated August 20, 2025, passed by the Principal Judge, Family Court, Jhansi. The lower court, acting under Section 144 of the BNSS (corresponding to Section 125 of the Cr.P.C.), had directed the revisionist to pay monthly maintenance of ₹30,000 to the opposite party (his wife) from the date of her application (May 29, 2025).
The revisionist sought to set aside this order, claiming he only became aware of it on January 1, 2026. He also requested the suspension of the order’s execution and the summoning of records from the pending execution case under Section 147 of the BNSS.
Arguments of the Parties
The counsel for the revisionist argued that the maintenance amount was awarded without affording him an opportunity to be heard. It was further contended that the Family Court failed to correctly assess the income of the revisionist and that the ₹30,000 monthly maintenance was “excessive,” citing a lack of reliable evidence regarding his current earnings.
On the other hand, the counsel for the opposite party submitted that the wife had no source of income and was living separately due to the misconduct of the husband. He argued that the husband had deliberately failed to appear despite receiving notice, which led to the ex-parte order. Crucially, the counsel for the opposite party raised a preliminary objection regarding the maintainability of the revision, stating that the appropriate remedy against an ex-parte order under Section 144 BNSS lies under Section 145(2) of the same Act.
Court’s Analysis and Observations
The Court examined the provisions of Section 145 of the BNSS (corresponding to Section 126 of the Cr.P.C.), which outlines the procedure for maintenance proceedings. Section 145(2) specifically provides a proviso for cases where a person is willfully avoiding service or neglecting to attend court.
The Court observed:
“This Court is of the opinion that against the ex-parte order passed under Section 144 B.N.S.S. (corresponding Section 125 Cr.P.C.), the jurisdiction is vested in the Judicial Magistrate or the Family Court to recall the order under Section 145(2) B.N.S.S. (corresponding Section 126(2) Cr.P.C.), therefore, the power should be exercised by the Judicial Magistrate or the Family Court rather than by filing a revision before this Court.”
The Court further clarified that once the Judicial Magistrate or Family Court passes an order on an application filed under Section 145(2) BNSS, only then should a revision be preferred before the High Court under Section 19(4) of the Family Courts Act, 1984.
The High Court found that the ex-parte order was passed “after due service of notice” and that a “specific statutory remedy is available” to the revisionist to show sufficient cause and seek an opportunity to contest the case on its merits at the trial level.
Decision
Justice Praveen Kumar Giri concluded that the revision was not maintainable at this stage due to the availability of an efficacious alternative remedy. The Court directed the revisionist to approach the concerned Family Court in Jhansi and move an application under Section 145(2) BNSS for recalling the order dated August 20, 2025.
The Court also noted that if there is any delay in approaching the trial court, the revisionist may file a delay condonation application, which the trial court shall consider in accordance with the law. With these observations, the revision was dismissed.
Case Details:
- Case Name: Anup Kumar vs. Smt Pratibha Kushwaha
- Case No: Criminal Revision Defective No. 141 of 2026
- Bench: Justice Praveen Kumar Giri
- Date: March 30, 2026
