S.126(2) CrPC | Family Court Must Satisfy Itself Of Party's 'Wilful' Absence Before Proceeding Ex-Parte In Maintenance Proceeding: Patna HC

The Patna High Court has, while setting aside a Family Court's ex-parte maintenance order under Section 126(2) CrPC in favour of the wife, held that before proceeding ex parte, the Magistrate must be satisfied that the person against whom the maintenance order is proposed is wilfully avoiding service or wilfully neglecting to attend court.

Justice Arvind Singh Chandel presiding over the case observed, “A plain reading of the proviso to Clause (2) of Section 126 of Cr. P.C. clearly shows that before proceeding ex parte, the learned Magistrate is required to satisfy that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service or wilfully neglecting to attend the Court.”

This ruling came in a revision petition filed by a husband aggrieved by the Family Court's decision, which directed him to pay Rs. 10,000 monthly to the wife as maintenance.

It was contended by the petitioner that no date of hearing was given, and the Family Court made no observation regarding his wilful neglect to attend the proceedings, making the ex parte order invalid.

Alternatively, the respondent contended that the husband was aware of the pending case but still chose not to attend court, justifying the ex parte order.

Upon reviewing the case records, the Court noted that the Family Court had recorded that after completing all proceedings to secure the presence of the opposite party (husband), he failed to appear before the Court, leading to his being declared ex parte.

The Court observed, “Perusal of the entire record of the concerned maintenance case, I do not find any document which shows that neither any notice has been issued by the Family Court nor has been served upon the petitioner herein. There is also no any document available on record which shows that any notice has been served to the petitioner through paper publication.”

The Court further observed that the Family Court had not made any observation suggesting that the petitioner had wilfully neglected to attend. The Court underscored that mere knowledge of the filing of the maintenance case is insufficient and that the petitioner must also be informed of the date fixed by the Trial Court.

The Court, therefore, held that, “on this ground only the impugned ex parte order passed by the Family Court is liable to be set aside.”

Accordingly, the revision petition was allowed, the impugned order was set aside, and the matter was remitted to the Family Court for fresh consideration after providing both parties with an appropriate opportunity to be heard.

Case Title: Avinash Kumar v The State of Bihar & Anr.

LL Citation: 2024 LiveLaw (Pat) 86

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