The court examined whether maintenance rates awarded in ex-parte proceedings should remain identical after the ex-parte order is set aside due to lack of notice, and analyzed the limitation period for challenging such orders under Section 126(2) Cr.P.C.

Cr. R. No.2534 of 2023 has been filed by the husband against the order dated 20.4.2023 passed in M.J.C. No.940 of 2019 challenging the interim maintenance order.

Cr.R. No. 2649 of 2022 has been filed by the applicant - wife alongwith her children challenging the order dated 15.6.2022 passed in Mis. (Cr.) J. Case No. 102/2021 by which an exparte proceedings have been set aside. Although he supports earlier interim maintenance and prays for restoration of order dated 8.11.2019 in M.J.C. No.940 of 2019 (exparte order).

Heard Shri S.S. Thakur, Shri Himanshu Mishra, counsel for the husband and Shri Amit Dave, counsel for the wife.

Earlier husband did not get an opportunity of hearing, as per para-23 of the order dated 15.6.2022 passed in MJC-R No.102 of 2021 learned trial court set aside the exparte order dated 8.11.2019 in M.J.C. No.940 of 2019 but by an order in Para-24 it is also directed that earlier maintenance awarded as per order dated 8.11.2019 shall be paid by the husband to the wife.

Wife has also challenged the order of setting aside of an exparte order, therefore, two conditions are raised while husband is supporting the cancellation of an exparte order and giving an opportunity of re-hearing and payment of earlier maintenance order whereas learned counsel for the wife is objecting to the order for cancellation of an exparte proceedings but she is supporting the order of earlier payment. At the same time it is also brought on record by both the parties by submitting a copy of order dated 29th of October 2025 passed in First Appeal No. 2117 of 2018 by Hon'ble Division Bench of this court that between these parties divorce has been granted on an application of the husband on the ground of cruelty by wife.

Now this is a new development and this fact is not before this court whereon proceeding under Section 125 of Cr.P.C., proceedings are still pending.

It is argued by counsel for the wife to set aside exparte proceedings, application was not made within three months from the date of order in the light of provisions under Section 126 (2) of Cr.P.C. wherein such an order has to be challenged within three months from the date of such order.

It is submitted that in the reply they have specifically raised the point of limitation regarding para-13 whereas counsel for the husband submits that in their application they had mentioned that as to why and when they moved this application for setting aside exparte proceeding because earlier they were not having the knowledge of the order.

Final maintenance has been awarded by the order dated 8th November 2019 to the tune of Rs.35,000/- i.e. Rs.15,000/- to the wife and Rs.10,000/- to two children each. Although in Section -126 a provision to set aside exparte order is made and that order can be set aside subject to showing good cause on such terms including the terms as to payment of cost to other party as the Magistrate may think fit and proper.

But what is proper should be reflected from the order because if a person is directed to pay the maintenance in a by parte proceeding case that would be different, in contrast to when an exparte order is set aside on the ground that he was not informed of the case.

In considered view of this court both the order should not be made at the same rate.

At this juncture it is required to be considered as to why an exparte order was made by learned First Additional Family Court Judge, Bhopal in Case No. 940 of 2019 (Smt. Sonal Khyani and others Vs. Ravindra Khyani, vide order dated 8th November 2019 from the court of First Additional Principal Judge, Family Court, Bhopal Shri Yogesh Datt Shukla. Therefore proof of service Ordinary/RAD is to be seen.

Let original record of M.J.C. No.940 of 2019 be called for from the Family Court, Bhopal expeditiously.

List aforesaid revisions in the second week of January 2026.

I.R. if any shall remain in operation till the next date of hearing.