Ex-Parte Order Set Aside Where Alleged Refusal Occurs During Judicial Custody, Violating Natural Justice

The petitioner (husband) challenged an ex-parte maintenance order dated 25.07.2023, which directed him to pay ₹31,000 per month under Section 125 Cr.P.C.

The Family Court at Jabalpur had proceeded ex-parte based on a process server's endorsement dated 03.02.2023, which claimed the petitioner refused service.

The petitioner subsequently filed an application under Section 126(2) Cr.P.C. to set aside the order, asserting he was lodged in Central Jail, Satna, on the date of the alleged refusal, making service impossible.

The Family Court rejected this application and a subsequent stay on recovery on 22.07.2025.

The petitioner then approached the High Court under Article 226 of the Constitution.

1. Whether the Family Court erred in rejecting the application under Section 126(2) Cr.P.C. without adequately investigating the petitioner’s claim of being in judicial custody on the date of alleged service of summons.

2. Whether the ex-parte maintenance order violated the principles of natural justice given the specific plea of factual impossibility of service.

The court primarily applied Section 126(2) of the Code of Criminal Procedure (Cr.P.C.), which mandates that an ex-parte order may be set aside if "sufficient cause" is shown for non-appearance within three months.

The court relied on the fundamental principles of natural justice, which require valid and effective service of notice before an adverse order affecting civil rights is passed.

It further recognized that while Section 125 Cr.P.C. aims to provide immediate financial support, such recurring liabilities must not be imposed without affording a bona fide opportunity for hearing when service is disputed.

The High Court observed that the petitioner’s plea regarding his judicial custody in Central Jail, Satna, on 03.02.2023 went to the "root of the matter".

It found that the Family Court’s order dated 22.07.2025 lacked a detailed consideration of this factual impossibility; if the petitioner was incarcerated, the endorsement of "refusal" was likely fraudulent or erroneous.

The court reasoned that an ex-parte decree can only be sustained if the judiciary is satisfied that service was "duly effected".

Since the petitioner provided prima facie evidence (Supreme Court bail orders and jail records) of his incapacity to receive notice, the Summary rejection by the lower court resulted in manifest arbitrariness.

However, the court also noted the respondents' need for subsistence, concluding that a balance must be struck between procedural fairness and the dependents' welfare.

The Family Court was directed to reconsider the application within sixty days, specifically examining the judicial custody records.

To balance equities, the High Court stayed coercive recovery of arrears but directed the petitioner to deposit ₹15,000 per month for the respondents pending final adjudication.

The court clarified it expressed no opinion on the merits of the maintenance claim itself.