Challenge To Ex Parte Interim Maintenance Order Confined To Demonstrating Absence Of Service Or Sufficient Cause For Non-Appearance: Allahabad High Court

The High Court was considering a criminal revision assailing the ex parte order of the Civil Judge allowing the application filed under Section 23 of the Protection of Women from Domestic Violence Act, 2005 and directing the revisionist husband to pay a sum of Rs 4,000 per month to his wife as interim maintenance.

The Single Bench of Justice Garima Prashad held, “Once the revisionist, despite service, chose not to appear before the trial court, he cannot now be permitted to assail the order by advancing substantive defences relating to the merits of the dispute. The scope of challenge to an ex parte order in such circumstances is confined to demonstrating absence of service or sufficient cause for non-appearance. Since both the courts of fact have already recorded a finding that the revisionist was duly served and had failed to appear, no interference with the impugned orders is warranted in revisional jurisdiction.”

The Revisionist appeared in person while Government Advocate represented the Opposite Party.

Factual Background

The marriage of the revisionist with the wife (second opposite party) was solemnised in 2014 according to Hindu rites and customs. From the said wedlock, two children were born. The wife instituted proceedings under the Protection of Women from Domestic Violence Act, 2005 and moved an application under Section 23 seeking the grant of interim maintenance during the pendency of the proceedings. The revisionist did not appear before the Court despite service. The Trial Court passed an ex parte interim order directing the revisionist-husband to pay Rs 4,000 per month towards maintenance.

The revisionist moved an application seeking recall of the ex parte order, which was rejected by the trial court, clearly recording that the revisionist had been duly served and had failed to appear before the court. The revisionist thereafter preferred an Appeal before the Additional Sessions Judge, which came to be dismissed. Aggrieved thereby, the revisionist approached the High Court.

Reasoning

On a perusal of the facts of the case, the Bench noted that the Trial Court allowed the application under section 23 on the basis of unrebutted averments made by the wife in the proceedings, which had proceeded ex parte against the revisionist. The Bench was of the view that once the revisionist admitted that the second opposite party was his legally wedded wife, it was his legal as well as moral obligation to provide for her maintenance.

The Bench further took note of the fact that the impugned order merely granted interim maintenance of Rs 4,000 per month to the legally wedded wife. The affidavit of income filed by the revisionist himself disclosed that he was incurring expenses of Rs 9,000 per month towards credit card payments and approximately Rs 1,27,181 annually towards the expenses of the children. This, according to the Bench, indicated that he was not without financial capacity. “In such circumstances, the award of a modest amount of Rs.4,000/- per month towards interim maintenance cannot be said to be excessive or arbitrary”, it added.

Considering that both the courts below had recorded a categorical finding of fact that the revisionist was duly served with notice of the proceedings and the ex parte order was passed only upon his failure to appear before the court, the Bench held that the concurrent finding was based upon the material available on record and did not suffer from any apparent illegality. “In such circumstances, while challenging an ex parte order, it is not permissible for the revisionist to raise grounds which would otherwise be available to him in a contested proceeding on merits”, the order read.

Reaffirming the view that the purpose of interim maintenance under the Protection of Women from Domestic Violence Act, 2005, is to ensure that the wife is not left destitute during the pendency of proceedings, the Bench stated, “Moreover, the order impugned is only interim in nature, passed to provide immediate relief until the rights and liabilities of the parties are finally adjudicated upon.”

Thus, dismissing the revision, the Bench clarified that such dismissal would not preclude the revisionist from participating in the proceedings before the Trial Court.

Cause Title: A v. State of U.P. and 4 others (Neutral Citation: 2026:AHC:56157)

Appearance

Revisionist: In Person, Advocate Vikas Srivastava

Opposite Party: Government Advocate

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