1. Criminal revision challenging dismissal of maintenance application under Section 125 Cr.P.C. for want of prosecution after evidence closed. (Para 6 , 7 )
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2026 Supreme(MP) 455
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
DWARKA DHISH BANSAL, J.
Smt. Rashi Moolchandani And Others – Petitioners
Versus
Komal Moolchandani – Respondent
Criminal Revision No. 6351 of 2024
Decided On : 07-05-2026
A maintenance application cannot be dismissed for non-appearance of counsel after the petitioners' evidence is closed. Courts must grant reasonable adjournments for counsel's illness or proceed ex-parte to decide the merit, ensuring that the right to summary relief is not denied due to procedural technicalities.
Headnote:(A) Criminal Procedure Code, 1973 - Section 125 / Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 144/145 - Family Courts Act, 1984 - Section 13 - Code of Civil Procedure, 1908 - Order XVII Rule 1 and 2 - Dismissal of maintenance application for want of prosecution - After closure of evidence of petitioners - Where the petitioners had already adduced their evidence and the matter was fixed for cross-examination of the respondent, the trial court cannot dismiss the application for want of prosecution simply due to the non-appearance of the counsel, especially when a request for adjournment on the ground of illness was made. The court ought to have granted a reasonable opportunity or issued fresh notices to the parties to ensure their presence. (Paras 6, 12, 16)
(B) Family Courts Act, 1984 - Section 13 - Appearance of advocates - While an advocate is not entitled to appear as a matter of right under the Act, once the Court has permitted a counsel to represent the parties, it has no jurisdiction to later refuse a prayer for adjournment or dismiss a case on the premise that the counsel has no right to appear. (Para 16)
(C) Code of Civil Procedure, 1908 - Order XVII Rule 2 - Procedure for non-appearance - If no one appears on behalf of the petitioners to cross-examine the respondent after the petitioners' own evidence is closed, the Court is competent to proceed under the Explanation to Order XVII Rule 2 C.P.C., treating the petitioners as present and passing appropriate orders after recording ex-parte evidence, rather than dismissing the main application for want of prosecution. (Para 17)
Facts of the case:
An application for maintenance under Section 125 Cr.P.C. was filed. After the petitioners' evidence was recorded and closed, the respondent was examined. On the date of the respondent's examination, a request for a one-week adjournment was made by the junior counsel due to the illness of the main counsel. The trial court granted only one day's adjournment. Due to the non-appearance of the petitioners and their counsel on the next date, the trial court dismissed the application for want of prosecution. A subsequent application for restoration was rejected on the ground that under the Family Courts Act, advocates do not have a right to appear as a matter of right.
Findings of Court:
The court found that the dismissal of the application was a glaring example of non-application of mind. Since the petitioners' evidence was already closed, the trial court committed an illegality by not granting a reasonable adjournment or issuing fresh notices to the parties. Furthermore, the court erred in rejecting the restoration application based on the Family Courts Act after having already permitted the counsel to represent the petitioners.
Issues: Whether a maintenance application can be dismissed for want of prosecution after the petitioners' evidence is closed and whether the non-appearance of counsel justifies such dismissal in light of the Family Courts Act.
Ratio Decidendi: A maintenance application should not be dismissed for non-appearance of counsel when the petitioners' evidence is already closed. The court must provide a reasonable adjournment if the counsel is unavailable or, alternatively, proceed ex-parte to decide the matter on merits. Once a court permits counsel to represent a party, it cannot unilaterally revoke that premise to justify a dismissal for want of prosecution based on the counsel's absence.
Result: Criminal revision succeeds in part and is allowed; impugned order is set aside and the matter is remanded to the Family Court for restoration and fresh decision on merits.
Legal Category Hierarchy
- family law
- practice and procedure
Table of Contents
2. Criminal revision allowed in part; impugned order set aside; matter remanded to Family Court to restore and decide maintenance application afresh. (Para 18 , 19 , 20 , 21 )
3. Under what circumstances can delay in filing a criminal revision be condoned without notice to the opposite party?
The court may condone delay if reasons are sufficient, especially when the impugned order is illegal and the opposite party is aware of the proceedings. (Para 3 , 4 )
4. Is it proper for a Family Court to dismiss a maintenance application under Section 125 Cr.P.C. for want of prosecution after the petitioner's evidence has been closed?
No. The court should grant a reasonable adjournment before dismissing for want of prosecution, especially when evidence is closed. (Para 12 , 15 , 16 )
5. What is the nature of proceedings under Section 125 Cr.P.C. and what procedural rules apply?
They are quasi-civil and summary in nature, not a final determination of civil status. The Family Court can adopt CPC procedure, but review is not available. (Para 11 )
6. When a party's counsel is absent due to illness, what is the court's obligation regarding adjournment?
The court should grant a reasonable adjournment of at least seven days, as the circumstances are beyond the control of the party. (Para 13 , 14 )
7. If a party fails to appear for cross-examination, can the court dismiss the case?
No. The court should proceed under Explanation to Order XVII Rule 2 CPC, treat the party as present, record ex-parte evidence, and pass a final order. (Para 17 )
ORDER :
DWARKA DHISH BANSAL, J.
Registry has listed this case for consideration of pending application (IA No.510/2025) for condonation of delay of 189 days occurred in filing of instant criminal revision as well as for admission.
2. The application has been filed on the ground that the petitioners were not aware about the impugned order dtd.12.03.2024 nor did their local counsel inform them about dismissal of the maintenance case and when they came to know about the same, they contacted the counsel and after getting the certified copy of impugned order, the criminal revision was filed immediately.
3. Upon due consideration of the reasons assigned in the application especially in the light of illegally passed final order dtd.12.03.2024 dismissing the main application for want of prosecution, the delay occurred in filing of the instant criminal revision is hereby condoned even without issuing notice to the respondent/husband in the light of decisions of Hon’ble Supreme Court in the case of Sesh Nath Singh And Another v. Baidyabati Sheoraphuli Co-operative Bank Ltd. And Anr. ,(2021) 7 SCC 313 (pr.61-62) and N. Balakrishnan v. M. Krishnamurthy , AIR 1998 SC 3222.
4. It is pertinent to mention here that during pendency of main application under Section 125 of Cr.P.C. an application for interim maintenance was filed and after hearing the parties the same was allowed vide interim order dtd.21.09.2021 awarding an amount of Rs.10,000/- each to the petitioners 2-3 (minor daughters), which was challenged by the respondent/husband by filing connected CRR no.3003/2021, which was tagged with the instant criminal revision and due to passing of final order dtd.12.03.2024, has been dismissed by this Court today itself as having rendered infructuous, which shows that the respondent/husband is well aware of the pendency of instant criminal revision.
5. Although the petitioners, instead of filing instant criminal revision, may also file an application for restoration of main application under Section 125 Cr.P.C. but there being no clear position about filing of the application for restoration, it may take years together for its decision. Since the impugned order is a glaring example of non-application of mind and not following the law declared by the Hon’ble Supreme Court, for want of knowledge or otherwise, therefore, instant criminal revision is being decided even without issuing any notice to the respondent.
6. This criminal revision has been preferred by the petitioners (wife and two minor daughters) challenging the order dated 12.03.2024 passed by Principal Judge, Family Court, Katni in MJCR no.33/2021 whereby the Family Court has dismissed an application under Section 125 of Cr.P.C. filed by the petitioners for want of prosecution, even after recording entire evidence of the petitioners i.e. after closure of evidence of the petitioners.
7. Even though no one is appearing on behalf of the petitioners to press the instant criminal revision, but from perusal of the record it is clear that in support of the application under Section 125 of Cr.P.C., the petitioners adduced their evidence and lastly it was declared closed on 10.02.2024, thereafter the respondent/husband was directed to produce his evidence on 24.02.2024.
8. On 24.02.2024, the respondent did not appear for recording of his statement and an application was filed on his behalf for adjournment on the ground of illness of the respondent, which was granted by the Family Court for 02.03.2024, with the direction to the respondent to produce his entire evidence on the given date. Again on 02.03.2024, an adjournment was sought on behalf of the respondent on the same ground, which was granted by the Court with direction to respondent to produce his evidence on 11.03.2024.
9. On 11.03.2024, the respondent-Kamal Moolchandani was examined. Order sheet dtd.11.03.2024 makes it clear that during the course of chief examination the respondent filed and exhibited certain documents. However, due to non-avai
