Before Proceeding Ex Parte U/S. 126(2) CrPC, Court Should Be Satisfied That Party Is Wilfully Neglecting To Attend Court: Patna HC
The Patna High Court set aside an ex-parte maintenance order issued by a Family Court under Section 126(2) of the CrPC in favor of a wife, emphasizing that before such an order is made, the Magistrate must confirm that the individual against whom the maintenance is sought is willfully avoiding service or neglecting to attend court.
This ruling stemmed from a revision petition filed by a husband who challenged the Family Court's decision that required him to pay ₹10,000 monthly as maintenance to his wife. The husband argued that the Family Court did not provide a hearing date and failed to show that he had willfully neglected to attend the proceedings, rendering the ex-parte order invalid.
A Bench of Justice Arvind Singh Chandel said, “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.”
Advocate Ujjwal Kumar appeared for the Petitioner and Advocate Sanjay Kumar Sharma appeared for the Respondents.
Upon reviewing the case records, the High Court noted that the Family Court had claimed to have completed all procedures to ensure the husband's presence but ultimately found him absent, leading to his ex-parte designation. However, 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 pointed out that the Family Court had not indicated that the husband had willfully neglected to attend the proceedings. It emphasized that mere awareness of the maintenance case being filed is not enough; the petitioner must also be informed of the specific date set by the Trial Court.
Consequently, the High Court concluded that the ex-parte order issued by the Family Court was invalid for these reasons.
The revision petition was allowed, the impugned order was annulled, and the matter was sent back to the Family Court for reconsideration, ensuring that both parties are given a fair opportunity to present their case.
Cause Title: X v. State of Bihar & Anr.
Appearance:
Respondents: Advocates Sanjay Kumar Sharma, Pranav Kumar