A maintenance order without hearing the husband is void

Shivendra Pratap Singh


High Court Lucknow

Family Law | Maintenance

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Advised on 15 Jun, 2021

My wife filed a maintenance case under section 125 CrPC. The court has passed a maintenance order without hearing the husband. I did not appear in court due to illness and fear of covid infection. My wife’s advocate appears in the court and says that the husband does not honour the court. The court, without giving me one more opportunity to appear, has passed the maintenance order. Sir, what remedy do I still have to save me from such a bad judgment?

Question from: Uttar Pradesh

Prima facie it seems that the court has passed an ex-parte order. The court can pass an ex-parte order when the respondent willfully neglects to attend the court. If you are deliberately and intentionally obstructing the process of court then the court will pass an ex-parte order. 

The court does not pass an ex-parte order on the very first absence of the opposite party. If he remains absent on several occasions despite having the opportunity to attend the court then the court will pass an ex-parte order.

Maintenance order without hearing the husband 

You are alleging that the court has passed an order of maintenance without giving you any opportunity of hearing. If the court did so, it has violated the principle of natural justice. Audi alteram partem is a Latin phrase which means “listen to the other side”, or “let the other side be heard as well.” This phrase is considered to be a principle of natural justice.

Also read: How to get stay order against section 125 crpc

In Union of India v. W. N. Chadha AIR 1993 SC 1082, the Supreme Court has held that the rule of audi alteram partem is a rule of justice. This principle of natural justice controls the arbitrary action of the court and quasi judicial body. An arbitrary judgment is illegal and void in the eyes of law.

Opportunity of hearing

The court is bound to give the opportunity of hearing to both parties. Opportunity must be sufficient otherwise it shall be treated as denial of justice. You said that the court has passed a maintenance order without hearing the husband (you). If such things had happened in delivery of justice then the court acted biasly.  

You had no “opportunity to hear” is an important fact. You have to prove this fact when you challenge the veracity of the order. The burden of proof lies upon you. You should take a certified copy of the order sheet. The order sheet will prove the fact that which party had the opportunity to defend his case. If you have the proof then you should file an appeal otherwise move an application to set aside this order.

File an application under section 126 CrPC for setting aside the order

The court has passed an ex-parte order because you willfully remained absent in the court. If you have sufficient reason or good cause to not attend the court then you should move an application under section 126 of the CrPC. This section empowers the court to set aside the ex-parte order. There is a three months limitation period to file such an application. 

Section 126 states that any (ex-parte) order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms at to payment of costs to the opposite party as the Magistrate may think just and proper.