The Allahabad High Court has partly allowed an application challenging an ex-parte order enhancing maintenance, ruling that a son who had attained the age of majority prior to the passing of the order under Section 127 of the Code of Criminal Procedure (Cr.P.C.) is not entitled to the enhanced amount. However, the Court maintained the enhancement of maintenance for the wife, observing that the increase was not “exorbitant” given current economic conditions.
Justice Rajiv Lochan Shukla passed the order while hearing an application filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) by one Moazzam Ali.
Background of the Case
The applicant approached the High Court challenging the judgment and order dated August 4, 2023, passed by the Principal Judge, Family Court, Bhadohi, in Criminal Misc. Case No. 334 of 2020. The Family Court had passed an ex-parte order under Section 127 Cr.P.C., enhancing the maintenance amount for Opposite Party No. 2 (wife) from Rs. 1,000 to Rs. 6,000 per month, and for Opposite Party No. 3 (son) from Rs. 500 to Rs. 4,000 per month.
The applicant also challenged the consequential execution proceedings initiated under Section 128 Cr.P.C. pending before the same court.
Arguments Raised
The counsel for the applicant, Wahaj Ahmad Siddiqui, argued that the impugned order was passed ex-parte without proper service of notice. It was submitted that the endorsement on the registered cover indicated the addressee lived outside, which should not have been deemed sufficient service. The counsel contended that the lower court arbitrarily endorsed that the applicant was deliberately avoiding summons.
A primary legal objection was raised regarding the maintenance awarded to Opposite Party No. 3. The counsel placed a birth certificate on record showing the son’s date of birth as January 7, 2005. Consequently, he attained the age of majority on January 5, 2023. The counsel argued that the enhancement order passed on August 4, 2023, failed to take into account that the son was already a major on that date.
Regarding the quantum of maintenance, the applicant pleaded that he cares for five children born from the wedlock and that the enhanced amount was beyond his capacity. Reliance was placed on an earlier High Court order (Criminal Misc. Writ Petition No. 22586 of 2013), where maintenance had been reduced considering the wife lived in the applicant’s house and ran a shop.
Court’s Observations and Analysis
The Court examined the birth certificate annexed to the application and confirmed that Opposite Party No. 3 had attained majority before the passing of the order under Section 127 Cr.P.C.
Regarding the son’s claim, Justice Shukla observed:
“Taking into account the fact that the opposite party No.3 has attained the age of majority before the passing of the order under Section 127 Cr.P.C., as is evident from birth certificate annexed as Annexure No.1 to this application. The impugned order so far as the same relates to the opposite party No.3 is hereby quashed.”
However, regarding the enhancement of maintenance for the wife (Opposite Party No. 2), the Court found no illegality. The bench rejected the applicant’s plea of financial hardship, noting the lack of evidence supporting his claims.
The Court observed:
“So far as the amount of maintenance enhanced with respect to the opposite party No.2, given the current day and age, the enhancement of the amount of maintenance, does not appear to be exorbitant. The applicant has also not pleaded that he is not earning and unable to maintain himself… Such submissions of the Learned counsel for the applicant are not supported by any evidence with respect to his sources of income or his current monthly income.”
The Court termed the Principal Judge’s decision regarding the wife as “just and legal,” stating it required no interference under the extraordinary jurisdiction of Section 528 BNSS.
Decision
The High Court partly allowed the application with the following directions:
- The maintenance awarded to Opposite Party No. 3 (son) was set aside.
- The applicant was directed to continue paying the monthly maintenance to Opposite Party No. 2 (wife) as per the order dated August 4, 2023.
- The arrears of maintenance accrued were directed to be paid in 12 equal monthly installments along with the regular maintenance.
The Court disposed of the matter without issuing further notice to the opposite parties, as they had failed to appear despite service of notice.
Case Details:
- Case Title: Moazzam Ali Versus State Of U.P. And 2 Others
- Case Number: APPLICATION U/S 528 BNSS No. – 7530 of 2025
- Bench: Justice Rajiv Lochan Shukla
