Smt. Rashi Moolanchani vs Komal Moolchandani

NEUTRAL CITATION NO. 2026:M
PHC-JBP:35872

1

C
RR No.6351/2024
IN THE HIGH
H COURT OF MADHYA PRAD
DESH
A T J A B A L P U R

BEFORE
RI JUSTICE DWARKA DHISH BANSAL
HON'BLE SHR
L
th
ON THE 7 OF MAY, 2026
O

INAL REVISION No. 6351 of 2024
CRIMI
SMT. RASH
HI MOOLCHANDANI AND OTHERS
Versus
KOMAL MOOLCHANDANI
K
--------------------------------
Appearance:
---------------------------------------------------
---------------
ers.
None for the petitione

O R D E R

Registry has listed
d this case for consideration of pending
application
(IA No.510/2025) for con
ndonation of delay of 189 days occurred
d in filing of
instant criminal revision a
as well as for admission.
2. The application ha
s been filed on the ground that the petit
tioners were
not aware about the im
mpugned order dtd.12.03.2024 nor did
their local
counsel inform them abou
ut dismissal of the maintenance case and
d when they
came to know about the s
ame, they contacted the counsel and after
r getting the
certified copy of impugne
ed order, the criminal revision was filed im
mmediately.
3. Upon due conside
eration of the reasons assigned in the
application
especially in the light of il
llegally passed final order dtd.12.03.2024
4 dismissing
the main application for w
want of prosecution, the delay occurred
in filing of
the instant criminal revisi
ion is hereby condoned even without iss
suing notice
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 11-05-2026
11:06:43

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to the respondent/husband
C
RR No.6351/2024
d in the light of decisions of Hon’ble Sup
preme Court
in the case ofSeshNath
Singh And Another v. BaidyabatiSheor
raphuli Co-
operative Bank Ltd. A
And Anr., (2021) 7 SCC 313 (pr.61-6
62) and N.
Balakrishnan v. M. Krishn
namurthy, AIR 1998 SC 3222 .
4. It is pertinent to me
ention here that during pendency of main
n application
under Section 125 of Cr.P
P.C. an application for interim maintenan
ce was filed
and after hearing the p
parties the same was allowed vide int
terim order
dtd.21.09.2021 awarding
an amount of Rs.10,000/- each to the pet
titioners 2-3
(minor daughters), which
was challenged by the respondent/husba
and by filing
connected CRR no.3003/
/2021, which was tagged with the insta
ant criminal
revision and due to passin
ng of final order dtd.12.03.2024, has bee
en dismissed
by this Court today itself
f as having rendered infructuous, which
h shows that
the respondent/husband i
is well aware of the pendency of insta
ant criminal
revision.
5. Although the petitio
oners, instead of filing instant criminal re
evision, may
also file an application fo
or restoration of main application under
Section 125
Cr.P.C. but there being n
no clear position about filing of the app
plication for
restoration, it may take y
years together for its decision. Since the
e impugned
order is a glaring exampl
le of non-application of mind and not fo
ollowing the
law declared by the Ho
on’ble Supreme Court, for want of kn
nowledge or
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 11-05-2026
11:06:43

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otherwise, therefore, insta
C
RR No.6351/2024
ant criminal revision is being decided ev
ven without
issuing any notice to the r
respondent.
6. This criminal revis
sion has been preferred by the petitioner
rs (wife and
two minor daughters) ch
hallenging the order dated 12.03.2024
passed by
Principal Judge, Family
Court, Katni in MJCR no.33/2021 w
whereby the
Family Court has dismiss
sed an application under Section 125 of C
Cr.P.C. filed
by the petitioners for w
want of prosecution, even after recor
rding entire
evidence of the petitioners
s i.e. after closure of evidence of the petit
tioners.
7. Even though no on
ne is appearing on behalf of the petition
ners to press
the instant criminal revisi
ion, but from perusal of the record it is c
clear that in
support of the applicatio
on under Section 125 of Cr.P.C., the
petitioners
adduced their evidence
and lastly it was declared closed on
10.02.2024,
thereafter the respondent
t/husband was directed to produce his e
evidence on
24.02.2024.
8. On 24.02.2024, th
he respondent did not appear for recor
rding of his
statement and an applicat
tion was filed on his behalf for adjournm
ment on the
ground of illness of the r
respondent, which was granted by the Fa
amily Court
for 02.03.2024, with the
e direction to the respondent to produc
e his entire
evidence on the given dat
te.Again on 02.03.2024, an adjournment
was sought
on behalf of the respond
ent on the same ground, which was gra
anted by the
Court with direction to res
spondent to produce his evidence on 11.0
03.2024.
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 11-05-2026
11:06:43

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9. On 11.03.2024, th
C
RR No.6351/2024
e respondent-Kamal Moolchandani was
s examined.
Order sheet dtd.11.03.20
024 makes it clear that during the cour
rse of chief
examination the respon
ndent filed and exhibited certain
documents.
However,due to non-avai
lability of main counsel, an application u
under Order
XVII Rule 1 of C.P.C.w
was filed on behalf of the petitioners, by
y the junior
counselShri Manu Tiwar
ri, for grant of one week's time on the
e ground of
illness of the main coun
nsel appearing for the petitioners, but th
he case was
listed for evidence/cross-e
examination of the respondent for 12.03.2
2024.
10. Apparently, on 12.
03.2024, the case was taken upat 12:10
p.m.but no
one had appeared on be
ehalf of the petitioners, consequently, th
he Court at
03:20 p.m. dismissed the
e main application under Section 125 of
f Cr.P.C. for
want of prosecution i.e.
in absence of the petitioners or their co
ounsel. The
order sheet dated 12.03.20
024 also shows that on the same date, an
n application
was filed by junior coun
selShri Manu Tiwari, for setting aside t
the order of
dismissal of application u
under Section 125 of Cr.P.C. at about
04:30 p.m.,
which was taken up for co
onsideration at 04:55 p.m. and was dismi
issed on the
ground that since the petit
tioner 1/wife has not appeared in the cas
e and as per
Section 13 of the Family C
Courts Act, 1984an Advocate, as a matte
er of right, is
not entitled to appear on
n behalf of a party and since the applic
cation under
Section 125 of Cr.P.C. h
has already been dismissed, rejected the
e prayer for
restoration of the main ca
se under Section 125 of Cr.P.C.
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 11-05-2026
11:06:43

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11. Apparently entire p
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RR No.6351/2024
procedure for adjudication of an applic
cation under
Section 125 of Cr.P.C. is
prescribed under Section 126 of the Cr.P
P.C./Section
145 of B.N.S.S. and in p
presence of Section 127 of Cr.P.C./Sec
ction 146 of
B.N.S.S. and due to bar c
created under Section 362 of Cr.P.C./Sec
ction 403 of
B.N.S.S.even the provisio
on of review provided under Order XLV
II Rule 1 of
C.P.C. is not applicable
to such proceedings. These proceedings
s are quasi-
civil and intended for su
mmary relief and not a final determinat
tion of civil
status. However, in the
interest of justice and with a view to
follow the
principles of natural justi
ce and further with a view to clear the d
doubts about
granting adjournments, re
ecording evidence including cross-examin
nation of the
witnesses, the Family C
Court or any other Court can adopt the
e procedure
prescribed under the C.P.
.C. while deciding the application/procee
eding under
Section 125 of Cr.P.C., w
which is usually adopted by the Family
y Court and
other Courts while decidi
ing the application under Section 125 of
Cr.P.C./144
of B.N.S.S. Needless to m
mention that the principle of resjudicata
a is also not
applicable to such proceed
dings, they being of summary nature.
12. In my considered o
opinion, in view of the fact that the pet
itioners had
already adduced their ev
vidence and it was declared closed on
10.02.2024,
therefore and when the c
case was fixed for cross-examination of
f respondent
for 12.03.2024 and for th
hat purpose only one adjournment was
sought and
granted by theFamily Cou
urt on 11.03.2024 to the petitioners, but
due to non-
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 11-05-2026
11:06:43

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appearance of the main
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RR No.6351/2024
counsel for the petitioners, first of all
the Family
Court ought to have grant
ted at least one reasonable opportunity of
f seven days,
as prayed by the counsel a
appearing for the petitioners.
13 . Further, while adjo
ourning the case vide order dated 11.0
03.2024 the
Court appears to have c
committed an illegality in granting only
y one day’s
adjournment for the purp
pose of cross-examination of the respon
ndent by the
petitioners without taking
g into consideration the ground of illness
of advocate
and the provisions conta
ained in Order XVII Rule 1(2)(b) of C
.P.C. which
provides that no adjournm
ment shall be granted at the request of a p
party, except
where the circumstances a
are beyond the control of that party.
14. In my considered o
opinion and as has been held by Hon’b
ble Supreme
Court in the case of Bashi
ir Ahmed vs. MehmoodHussain Shah, AI
IR 1995 SC
1857 ,when on the date of
cross-examination of the respondent, the
e counsel for
the petitioners did not ap
ppear, the same itself was sufficient grou
und to grant
reasonable adjournment
at least of seven days because in abse
ence of the
counsel and even in prese
ence of a party to the lis, he/she cannot b
be supposed
to cross-examine the oppo
osite party and these circumstances were
e beyond the
control of the petitioners.
15. In the present case,
, it is one of the important facts, that evid
dence of the
petitioners was closed o
on 10.02.2024, thereafter, two adjournm
ments were
granted to the responden
nt/husband and only first time i.e. on
11.03.2024
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 11-05-2026
11:06:43

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adjournment was sough
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RR No.6351/2024
ht for the purpose of cross-examinat
tion of the
respondent that too on the
e ground of illness of main counsel.
16. Even after granting
g permission to the counsel, as per Sectio
on 13 of the
Family Courts Act, 1984,
, ifthe Court was of the opinion that the
counsel for
the petitioners was not en
ntitled to makea prayer for adjournment
t, then fresh
notice/summons for appe
earance in the case ought to have been is
ssued to the
petitioners in absence of
their counsel, especially when the petit
tioners were
not aware about the date
of hearing as well as when the Court pe
ermitted the
respondent to produce cer
rtain documents along with the list of doc
cuments and
to mark exhibits thereon
directly even without filing any applica
ation in that
regard and even without s
supplying their photocopies to the petitio
oners. In any
case, after permitting th
e counsel to represent the petitioners,
the Family
Court without revoking
the permission, had no jurisdiction to
o refuse the
prayer to grant adjournm
ment on the premise that as a matter o
of right, the
counsel is not entitled to a
appear on behalf of a party.
17. Further, upon addu
ucing evidence by the petitioners, even if
f no one had
appeared on behalf
of the petitioners to cross-exa
amine the
respondent/husband or h
is witnesses, the Court was competent
to proceed
further by following the
procedure given under Explanation to O
Order XVII
Rule 2 of the C.P.C.treati
ing the petitioners as present for passing
appropriate
ordersand after recording
g ex-parte evidence of the respondent,ou
ught to have
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 11-05-2026
11:06:43

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passed the final order on t
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RR No.6351/2024
the main application, as has been held by
the Hon'ble
Supreme Court in the
case of G. Ratna Raj (D) By L
LRs. v. Sri
Muthukumarasamy Perm
manent Fund Ltd., (2019) 11 SCC 30
01; and B.
JanakiramaiahChetty v. A
A.K. Parthasarthi and Others, (2003) 5 S
SCC 641; as
well as by this Court in th
he case ofRambatiBai and others v. Govi
ind Narayan
Sharma, 2024 SCC OnLi
ine MP 5140 .
18. In view of the afor
resaid discussion, criminal revision succ
eeds in part
and is allowed and by set
tting aside the impugned order dated 12.0
03.2024, the
matter is remanded to th
he Family Court, with the direction to
restore the
application under Section
n 125 of Cr.P.C. to its original number an
nd to decide
the same afresh on its ow
wn merits, after giving due opportunity o
f hearing to
the parties and without be
eing influenced by the impugned order.
19. Parties are directe
ed to remain present before the Family
y Court on
29.06.2026.
20. It is made clear th
hat if the parties to the proceedings do
not appear
before the Family Court,
it shall issue fresh notice/summons wit
th a view to
secure their presence befo
ore the Family Court.
21. Pending application
n(s), if any, shall stand disposed of.

(DWARKA DHISH BAN
JUDGE

NSAL)



SS
Signature Not Verified
Signed by: SWETA SAHU
Signing time: 11-05-2026
11:06:43