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Notice under section 128 crpc

Shivendra Pratap Singh

Advocate

08/04/2021

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I have received a notice under section 128 crpc. My wife filed a maintenance case under section 125 of the code of criminal procedure. The court has passed final order in that case to pay rupees seven thousand per month as a maintenance. This is too high maintenance and beyond my financial capacity. Therefore, I filed a revision before the sessions court but due to COVID I could not appear. Consequently it has be dismissed. Now my wife is approaching the court to implement it order. Yesterday I have received a notice.

Question from: Maharashtra

Your wife has a order of maintenance so she can approach the court to execute this order. However, your revision application is dismissed in default but you can recall this order. If court satisfies that maintenance order is beyond the financial capacity of husband then it can reduce it.

Notice under section 128 crpc

The court can issues a notice under section 128 crpc for implementation of its order. Merely filing of revision application does not stall the effect of maintenance order. So, you should obey the order of court and pay maintenance to your wife. If maintenance remains unpaid for more than one month then the court may issue a warrant against you. Therefore, you should pay the maintenance forthwith. You can pay it directly in your wife’s account or deposit it in the court.

Recall of revision application

You should immediately move an application before the court for recalling of order. The court can recall its order if you show a genuine reason for non-appearance in the court. However, section 362 crpc prohibits the court to alter or review the judgement. But proceeding under section 125 is a quasi criminal nature. Therefore, court can recall its order.

You have genuine reason for non-appearance in the court. Due to COVID cases courts had not been functioning properly. There was apparent fear of COVID infection in attending public places. These are the cogent reason which you can pray to court.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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