Failure to Fulfill Precondition for Recalling Ex-Parte Order Justifies Restoration of Ex-Parte Proceedings in Maintenance Cases

The petitioner (husband) challenged an order dated 09.04.2025 passed by the Principal Judge, Family Court, Nalanda, which directed him to pay ₹15,000 per month as maintenance to the opposite party no. 2 (wife) and ₹5,000 as litigation costs.

The trial court had originally proceeded ex-parte on 21.09.2022. Though the ex-parte order was recalled on 13.01.2023 subject to a cost of ₹2,000, the petitioner failed to pay the cost, claiming his counsel did not inform him.

After several dates of non-functional court sessions and one specific instance of non-appearance on 22.01.2024, the trial court resumed ex-parte proceedings and passed the final maintenance order.

The petitioner filed this revision seeking to set aside the order to contest the case on merits.

1. Whether the trial court was justified in proceeding ex-parte and passing the final maintenance order due to the petitioner’s failure to comply with the conditions of recalling the previous ex-parte order.

2. Whether the lack of a specific fresh declaration on 22.01.2024 that the matter would proceed ex-parte vitiated the final judgment.

The Court applied Section 125 of the Code of Criminal Procedure (CrPC) regarding the statutory right of a wife to claim maintenance.

It implicitly referenced the procedural requirements under Section 126(2) of the CrPC, which mandates that evidence in maintenance cases be taken in the presence of the person against whom an order is proposed, unless their personal attendance is dispensed with or they wilfully neglect to attend, in which case the Magistrate may proceed ex-parte.

The court also emphasized the principle of compliance with judicial orders (payment of costs) as a prerequisite for seeking discretionary relief.

The Court rejected the petitioner’s argument that he was denied a fair opportunity to contest. It noted that once the ex-parte order was recalled on the condition of paying ₹2,000, it was the petitioner’s "duty bound" obligation to fulfill that term, regardless of other maintenance payments being made in parallel proceedings.

The Court found the petitioner’s excuse (lack of communication from counsel) and his claim regarding non-adducement of evidence on previous dates to be "misconceived," noting that no evidence was led on those dates because the court was not functional due to administrative reasons (leave/transfer).

Crucially, the Court held that a specific fresh declaration of ex-parte status on 22.01.2024 was unnecessary because the trial court had explicitly directed the wife to bring evidence "in the light of order dated 21.09.2022," which was the original ex-parte order.

The Court dismissed Criminal Revision No. 922 of 2025, thereby upholding the trial court's order for maintenance of ₹15,000 per month.

The delay of 38 days in filing the revision was formally condoned via I.A. No. 01 of 2025 prior to the dismissal.