An application to recall an ex parte maintenance order lies before the court having territorial jurisdiction over the original proceedings.

The applicant sought transfer under Section 447 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) of Miscellaneous Application No. 66 of 2025, filed by the respondent under Section 126(3) of the Code of Criminal Procedure, 1973 (“CrPC”) for recalling an ex parte maintenance order dated 18 February 1994.

The original maintenance order under Section 125 CrPC had been passed by the then Additional Munsif Magistrate, Rudrapur, District Nainital.

The respondent subsequently filed the recall application, along with an application under Section 5 of the Limitation Act, before the Principal Judge, Family Court, Nainital.

The applicant contended that the proceedings had been instituted before a court lacking territorial jurisdiction and that both parties resided within District Udham Singh Nagar.

The respondent opposed transfer, arguing that no substantive proceedings existed unless the limitation application was first allowed.

Whether Miscellaneous Application No. 66 of 2025, filed under Section 126(3) CrPC to recall the ex parte maintenance order dated 18 February 1994, was pending before a court lacking territorial jurisdiction

Whether the proceedings should be transferred from the Principal Judge, Family Court, Nainital, to the Principal Judge, Family Court, Rudrapur, District Udham Singh Nagar, under Section 447 BNSS

Whether the pendency of an accompanying application under Section 5 of the Limitation Act prevented transfer at that stage

The Court applied Section 447 BNSS, which empowers the High Court to transfer criminal proceedings where such transfer is appropriate in the interests of justice.

It considered Section 126(3) CrPC, under which a court may set aside or recall an ex parte maintenance order upon sufficient cause being shown.

The Court also considered the territorial-jurisdiction principle that an application seeking recall or alteration of an order under Section 125 CrPC should be entertained by the competent court having jurisdiction over the original proceedings and the relevant territorial area.

Section 5 of the Limitation Act governed the respondent’s request for condonation of delay but did not alter the question of territorial jurisdiction.

The Court examined the ex parte maintenance order dated 18 February 1994 and found that it had been passed by the then Additional Munsif Magistrate, Rudrapur, District Nainital.

Since Rudrapur was now within the territorial jurisdiction of the Principal Judge, Family Court, Rudrapur, District Udham Singh Nagar, the Court held that the recall application under Section 126(3) CrPC had been presented before the Principal Judge, Family Court, Nainital, on a misconceived understanding of territorial jurisdiction.

The fact that the limitation application had not yet been decided did not justify retaining the matter before a court lacking jurisdiction.

Transfer to Rudrapur was also considered appropriate because both parties resided within District Udham Singh Nagar and the Rudrapur Family Court was the competent court to entertain the application.

It held that the Principal Judge, Family Court, Rudrapur, District Udham Singh Nagar, had territorial jurisdiction to entertain the respondent’s application under Section 126(3) CrPC.

Accordingly, Miscellaneous Application No. 66 of 2025, Shankar Mistri v. Sunila Mistri, was transferred from the Principal Judge, Family Court, Nainital, to the Principal Judge, Family Court, Rudrapur, District Udham Singh Nagar.