Legal Advice

How to get stay order against section 125 CrPC

Question: My wife filed a case under section 125 crpc for Maintenance in JMFC Court in the year 2013. The court has decided it ex-parte and granted to pay rupees 6000 per month as maintenance. In the meantime, the Family court has also granted alimony under section 24 of the Hindu marriage act. The Family court has ordered to pay a monthly allowance of rupees 14000 per month. When the court did not take into account the order of family court while deciding the petition under section 125 crpc, she is trying to harass me by filing multiple cases. How could I get stay order?


Section 125 of the code of criminal procedure (crpc) provides a right to maintenance to the destitute wife. A destitute wife can claim maintenance from her husband if he has been neglecting or refusing to maintain. The husband must maintain his wife if he has sufficient means. 

Stay order against section 125 CrPC

The court may stay the proceeding instituted under section 125 crpc if the wife is receiving another maintenance from a competent court. The Family Court is a competent civil court to pass an order of interim maintenance under section 24 HMA.

In Sanjay Kumar Sinha v. Asha Kumari, (2018) 5 SCC 333; the Supreme Court held that passing of maintenance under section 24 HMA stands superseded the order passed under section 125 because it no longer contains the field.

Section 125 crpc is a quasi-civil proceeding. An order passed thereunder is tentative in nature. In N. Natikar Vs Neelamma (2015) 1 SCC (Civ) 346; the Supreme Court held that order made under Section 125 CrPC is tentative. Therefore, the court may alter or stay its order upon the evidence that wife is receiving maintenance under section 24 HMA.

In Pallavi v Sachin 2012 (3) MPLJ; the Madhya Pradesh High Court held that if interim maintenance granted under section 24 of the HMA is in force, the wife would not be entitled to separate alimony under section 125 CrPC.

Thus court may stay the proceeding because your wife is already receiving adequate maintenance. In Sumita Ganguly v Debasish Ganguly (2010) 1 Cal LT 442; the Calcutta High Court held that maintenance granted under section 24 HMA then order pass under section 125 CrPC shall be adjusted against each other and the husband is only obliged to pay a higher amount of maintenance.

Dual maintenance

Your wife has been receiving dual maintenance from you in two distinct proceedings. Such a dual maintenance is unjustified because you are bearing undue financial burden. You should not be penalized by paying excessive maintenance

Therefore, you should seek alteration in the maintenance order passed in 125 crpc. Section 127 crpc provides that the court can alter or repudiate the order of maintenance on the changes in circumstances of the case.

Your wife is receiving fourteen thousand rupees as alimony by the decree of Family Court. Hence, this fact is sufficient for the cancellation of maintenance order under Section 125 crpc.

Set aside the ex-parte order

First of all you should set aside the ex-parte order. The court has passed an ex-parte order because you remained absent in the court. Ex-parte order itself proves that opposite party was willfully neglecting to attend the court. In this situation, you should proceed to set aside this order.

The court can set aside the ex-parte order after satisfaction that you had sufficient reasons for non-appearance. Unless you set aside this order you cannot seek any relief from the court. The ex-parte order prima facie proves that:

  • You have been neglecting to maintain your wife.
  • Your wife has been living in vagrancy.
  • There is prima facie evidence that you have sufficient means.
  • You have deliberately not appeared in the court.

How to set aside that ex-parte order

You should file a recall application under section 126(2) of the Code of Criminal Procedure. The limitation period for filing of recall application is three months from the date of ex-parte order. You should adduce evidence which tend to prove a valid ground for your absence. The relevant portion of section 126 has given below.

According to section 126(2) of crpc: 

  • If the opposite party wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. 
  • The court may set aside the ex-parte order for showing the good cause of absence on an application.
  • You must file such an application within three months from the date of ex-parte order.

Thus apply under section 126(2) crpc along with an explanation about your absence. If the court considers that the reason is genuine and sufficient then it may set aside the ex-parte order. Thereafter, the case will restore with its original number.

If the court rejects your application then you should file a revision before the court of sessions. The sessions court, however, may set aside the ex-parte order and remand the matter to the original court. If the limitation period has expired and the court does not condone the delay then you should move an application under section 127 crpc.  

Question: Wife has filed DV 2005 case in which interim maintenance of Rs. 12000 was granted to her. I filed appeal u/s 29 against this order along with a plea to set aside the maintenance order. Hearing my application is delayed because of covid-19. Meanwhile I have got the ex-parte decree of section 9 Hindu Marriage Act in my favour. Wife did not show up during the proceedings. After the decree she approached the court and filed a recall application to set aside the ex-parte order which is in notice stage as of now.

Meanwhile, Trial court issues notice to me u/s 125(3) for the recovery of arrears for the interim maintenance granted to the wife in DV case. She has filed one more case of crpc 125 seeking maintenance in family court. How can I get the stay on interim maintenance orders since the hearing is delayed in sessions court due to covid 19. If in case of crpc 125, can the court grant her additional maintenance/interim maintenance if the wife is already getting in DV case. Will I need to pay both separately? How can the ex-parte decree of section 9 passed in my favour will help me in reducing the maintenance amount?

Asked from: Rajasthan

Appellate court did not stay the maintenance order

You have filed an appeal under section 29 of the Domestic Violence Act. That appeal is still pending. The appellate court has not passed any order regarding the stay of interim maintenance. Therefore, you cannot seek a stay of interim maintenance order. There is only one interim maintenance order. If there is more than one then you can request the court to stay the maintenance order passed in the DV Act case.  You cannot get stay order.

When the appellate court did not stay the order of interim maintenance hence, you should pay it. You did not pay the monthly allowance therefore, the court has power to issue summons for the payment of arrear. In this situation you should pay the arrear immediately. 

Request for alteration or cancellation of the maintenance order  

You should file an application under section 125(4) of the code of criminal procedure for alteration of the maintenance order. You have an ex-parte decree in restitution of conjugal rights case. It proves that your wife has no right to stay separate from you. According to section 125 crpc, if the wife has no valid reason to live separately then she cannot claim maintenance. 

This provision will apply over the maintenance order passed in Section 20 of the DV Act. Unless the court does not recall its ex-parte order it will apply as a final order. So you should produce the copy of that order in the maintenance proceeding. The court will alter its maintenance order.

Shivendra Pratap Singh


High Court Lucknow