A litigant should not suffer an ex parte maintenance order solely because of counsel’s default.

The respondent sought maintenance under Section 125 of the Code of Criminal Procedure, 1973.

The Family Court partly allowed her application and directed the applicant to pay ₹4,000 per month from the date of the application, along with arrears and costs.

The applicant asserted that, although he had engaged an advocate, the advocate failed to appear, resulting in the matter proceeding ex parte.

The applicant consequently had no opportunity to cross-examine the respondent or lead evidence.

He challenged the Family Court’s order in revision, seeking a remand.

The respondent did not oppose remand, provided that maintenance of ₹4,000 per month continued pending the Family Court’s decision.

1. Whether the ex parte maintenance order should be set aside and the matter remanded where the applicant was deprived of an opportunity to contest the proceedings because his advocate failed to appear.

2. Whether payment of ₹4,000 per month should be required as a condition of remand pending fresh adjudication.

The respondent’s maintenance application was brought under Section 125 of the Code of Criminal Procedure, 1973.

The revision application was stated to be under Sections 438 read with 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

Relying on Rafiq v. Munshilal, (1981) 2 SCC 788, the Court applied the principle that an otherwise diligent litigant should not suffer injustice solely because of the default or negligence of the advocate engaged to represent them.

The Court also treated continued interim maintenance as a condition of remand, consistent with the applicant’s undertaking and the respondent’s request.

The applicant’s advocate’s non-appearance led to the case proceeding ex parte, depriving the applicant of the opportunity to cross-examine the respondent and present a defence.

Applying Rafiq, the Court concluded that, in the interests of justice, the applicant should be allowed to contest the maintenance application on its merits rather than bear the consequences of counsel’s default.

The Court ordered that the applicant continue paying ₹4,000 per month during the remanded proceedings, as he had offered to do and the respondent had requested.

The applicant must continue paying ₹4,000 per month until the application is finally decided.

The parties were directed to appear before the Family Court on 5 October 2026, and the Family Court was directed to dispose of the matter within six months of receiving the order.

The Court expressed no opinion on the merits.