A respondent who learns that a Family Court has fixed maintenance against him in his absence often reaches instinctively for the High Court. On 17 September 2026, Justice Alok Mahra of the High Court of Uttarakhand, in Criminal Revision No. 359 of 2026 (Revisionist v. Afsana Naz — the revisionist's name is anonymised in the record), explained why that instinct is wrong. The husband had challenged an ex parte order of the Family Court, Roorkee dated 3 February 2025 directing him to pay ₹3,000 per month as interim maintenance under Section 125 CrPC. The High Court dismissed the revision as not maintainable — because the statute itself provides the first remedy, before the trial court.
What happened
The Family Court at Roorkee, proceeding ex parte, directed the husband to pay ₹3,000 per month as interim maintenance under Section 125 CrPC by an order dated 3 February 2025. Rather than applying to that court to recall the ex parte order, the husband filed a criminal revision before the High Court. Counsel for the wife objected at the threshold: the statutory remedy had not been exhausted.
The holding
The High Court sustained the objection and dismissed the revision as not maintainable. The reasoning is compact: the proviso to Section 126(2) CrPC itself contemplates that an ex parte order may be set aside by the court that made it, on good cause shown, within three months. As the Court put it, "the revisionist has an option under Section 126(2) CrPC to move an application for recall of ex-parte order before the learned trial court." Two ameliorating directions followed — liberty to file the recall application within thirty days, and a direction to the trial court to decide it expeditiously, without unnecessary adjournments.
The two routes compared
Challenges the order on its merits — but against an ex parte order it invites dismissal as premature, costs time, and leaves the order operating and arrears mounting throughout.
The statutory first step: show good cause for the absence within three months. If recall is granted, the matter is heard afresh on merits; if refused, that refusal — and the original order — can then be tested in revision.
The position under the BNSS
For proceedings governed by the Bharatiya Nagarik Suraksha Sanhita, 2023, the same architecture appears in Section 145(2): maintenance proceedings under Section 144 BNSS (the successor to Section 125 CrPC) may result in ex parte orders where the respondent is wilfully avoiding service or neglecting to attend, and the proviso permits setting aside within three months on good cause. The recall-first discipline described in this judgment therefore applies with equal force to new-code proceedings in Delhi\'s Family Courts.
The practice point
For respondents: diarise the three-month window from the date of the ex parte order, support the recall application with concrete proof of the reason for absence — service defects, medical records, travel documents — and seek an early hearing, because the maintenance meter runs in the meantime. For claimants: an ex parte order is not a fragile order. Oppose recall applications that plead vague ignorance, insist on proof of good cause, and press enforcement of accrued arrears, which the recall application does not by itself suspend.
This article is for general information only and is not legal advice or a solicitation.
Frequently Asked Questions
What is the remedy against an ex parte maintenance order?
The proviso to Section 126(2) CrPC — now carried into Section 145(2) of the BNSS, 2023 — permits the Magistrate or Family Court to set aside an ex parte order on an application made within three months of the date of the order, on good cause being shown for the absence. That recall application before the same court is the first remedy, not a revision to the High Court.
Why was the revision dismissed as not maintainable?
Because the revisionist had bypassed the statutory recall route. The High Court held that "the revisionist has an option under Section 126(2) CrPC to move an application for recall of ex-parte order before the learned trial court," and dismissed the revision while granting liberty to file the recall application within thirty days, with a direction that it be decided expeditiously.
What if the three-month period for recall has expired?
The application must ordinarily be filed within three months of the ex parte order, and the applicant must show good cause for non-appearance. Where genuine grounds exist for the delay itself, courts have examined condonation on the facts; but the safest course is immediate action upon knowledge of the order, with proof of when knowledge was acquired.
Does the ex parte order remain payable in the meantime?
Yes. An ex parte maintenance order is enforceable like any other unless and until it is set aside or stayed. Arrears accumulate, and enforcement — including warrants under Section 125(3) CrPC / Section 144(3) BNSS — remains available to the claimant while the recall application is pending, unless the court orders otherwise.