Family court can pass ex parte order on maintenance
MUMBAI: A family court can pass an ex parte order directing the husband to pay maintenance to his wife and children, the Bombay high court (HC) has ruled.
Justice A P Bhangale said that such orders under section 125 of the Criminal Procedure Code (CrPC) can be granted by the family court judge on being satisfied that there is a prima facie case for ordering maintenance. The family court judge can even call for affidavits to be filed by the person applying for maintenance.
“A person approaches the court for maintenance as he or she is not in a position to maintain himself or herself,” said Justice Bhangale. The court added that if such a person is told that she will have to wait and will be entitled to maintenance only after considerable time, “how (can) such a person carry on and live to know the decision of the court, which may take place in some cases several years later. Such a situation would either result in miscarriage of justice or failure of justice.”
The HC said in many cases time is spent on serving notice to the husband. “Especially in maintenance matters, the attempt of the husband would be to avoid service of notice and see that the matter is prolonged on the assumption that until the notice is served on him no interim or final order can be passed by a court. This has also resulted in the pendency of several petitions over the years without the notice being served.”
The court was hearing a petition filed by Nagpur-based medical practitioner Dr Sahil Khan. Following his divorce, a family court in August 2010 ordered him to pay Rs 15,000 as monthly maintenance to his former wife Dr Nafisa and their two children, a four-year-old son and one-year-old daughter. This maintenance order was under the CrPC, which allows a wife or parents to claim maintenance from a man on grounds of neglect.
Dr Khan’s lawyers argued that his ex-wife was educated, having done her DPharm and could maintain herself. He claimed that he had to maintain his large family.
The court pointed out that an application can be filed under section 127 of the CrPC to modify or cancel the order of maintenance, if changed circumstances are pointed out. For a divorced wife, it would be if she has remarried or has received a lump-sum payment on divorce or if she has surrendered her maintenance rights.
The court said the family court judge was then well within his powers to order interim maintenance, even ex parte. An application could be filed to seek alteration of the terms of maintenance, the HC held.
(Names of couple changed to protect their identities)