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.
The court has passed ex-parte order because you were absent in the court when the court had passed the order. If the opposite party wilfully neglecting to attend the court then the court has the power to pass an ex-parte order.
In this situation, you should proceed to set aside this order. 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.
Set aside the ex-parte order
You should file an application under section 126(2) of the Code of Criminal Procedure. If the opposite party has some sufficient reason for his absence then the court can set aside the ex-parte order. 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 order. Thereafter, the court will fix a date for further hearing and decide your case.
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.
Your wife has been receiving dual maintenance from you in two distinct proceedings. Such a dual maintenance is unjustified because the husband is bearing the undue financial burden. The husband should not be penalised by paying excessive maintenance.
Therefore, you should seek a reduction of the maintenance amount. Section 127 crpc provides that the court can alter the amount of maintenance. On the proof of changes in circumstances of the wife, the court can alter the maintenance order.
The Family Court has passed an interim order under section 24 of the Hindu Marriage Act (HMA). This order has changed the circumstance of your wife because now she is not a destitute lady. She cannot take plea that she has been living in poverty. Therefore, you can seek alteration under section 127 crpc.
Stay order against section 125 CrPC
The court may stay the proceeding instituted under section 125 crpc if the wife is receiving maintenance from a competent court. The Family Court is a competent civil court to pass an order 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 now no longer contains the field.
Section 125 crpc is a civil nature proceeding and the order passed therein is tentative. 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.
The court may stay the proceeding because your wife is already receiving enough 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.
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?Question 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.