Case at a Glance
A wife who had applied to set aside an ex parte decree under Order IX Rule 13 of the Code of Civil Procedure also sought interim maintenance under Section 24 of the Hindu Marriage Act, but the Family Court at Nagpur held that such an application was not maintainable in an Order IX Rule 13 proceeding. The Bombay High Court’s Nagpur Bench disagreed. Following its earlier ruling in Hemaraj Shamrao Umredkar v. Leela, it held that though the procedure for setting aside an ex parte decree comes from the CPC, the proceeding remains one under the Act, set aside the Family Court’s order and sent the application back for a fresh decision.
The petitioner wife filed Civil M.A. No. 65 of 2025 before Family Court No. 2, Nagpur, a proceeding under Order IX Rule 13 of the Code of Civil Procedure, which provides the remedy for setting aside an ex parte decree. In that proceeding, she filed an application (Exhibit 18) under Section 24 of the Hindu Marriage Act seeking interim maintenance.
By order dated 29 April 2026, the Family Court non-suited her solely on the ground that an application for maintenance pendente lite under Section 24 is not maintainable in an Order IX Rule 13 proceeding. She challenged that order in a writ petition before the Nagpur Bench.
The Key Question Before the Court
Is an application for interim maintenance under Section 24 of the Hindu Marriage Act maintainable in proceedings under Order IX Rule 13 of the Code of Civil Procedure?
A proceeding under the Act, whatever the procedure
Justice Nandesh S. Deshpande framed the question for consideration as whether a Section 24 application is maintainable in proceedings under Order IX Rule 13, and found that it had been “authoritatively answered” by the High Court in Hemaraj Shamrao Umredkar v. Leela, AIR 1989 Bombay 146. That decision holds that although the setting aside of an ex parte decree is governed by the Code of Civil Procedure, the proceeding would only be a proceeding under the Act, that is, the Family Court Act, by virtue of its Section 21.
Since the Family Court had rejected the wife’s application only on the ground of non-maintainability, its order could not be sustained. The High Court did not decide the amount or entitlement itself; it quashed the order and remanded the application to the Family Court for decision afresh in light of the ruling, after hearing both parties.
What the Court Actually Held
- A Section 24 Hindu Marriage Act application for maintenance pendente lite is maintainable in proceedings under Order IX Rule 13 CPC, following Hemaraj Shamrao Umredkar v. Leela.
- The Family Court’s order dated 29 April 2026 below Exhibit 18 in Civil M.A. No. 65 of 2025, which rejected the application only on maintainability, was quashed and set aside.
- The matter was remanded to Family Court No. 2, Nagpur, to decide the application afresh after hearing the parties.
- The writ petition was allowed and disposed of.
Why This Judgment Matters
- It lets a spouse seek interim support while trying to reopen an ex parte decree in the Family Court.
- It reaffirms a decades-old Bombay High Court precedent that Family Courts should follow.
- It prevents applications being thrown out on a technical maintainability objection without examining merits.
What Should Advocates Take Away From the Judgment?
For Spouses
- If an ex parte decree has been passed against you, you can apply to set it aside under Order IX Rule 13 CPC.
- While that application is pending, you may also apply for interim maintenance under Section 24 of the Hindu Marriage Act.
- The Family Court must decide such an application on merits, not reject it as not maintainable.
For Counsel
- Cite Hemaraj Shamrao Umredkar v. Leela, AIR 1989 Bombay 146, on maintainability.
- Point to Section 21 of the Family Courts Act to show the proceeding remains one under the Act.
- Prepare income and expense details for the remanded hearing on quantum.
Key Takeaways
- Order IX Rule 13 proceedings in matrimonial cases remain proceedings under the Act.
- Section 24 interim maintenance can be sought in such proceedings.
- A Family Court cannot non-suit an applicant solely on maintainability in these circumstances.
- The High Court remanded the matter instead of fixing maintenance itself.
Frequently Asked Questions
Can I claim interim maintenance while trying to set aside an ex parte decree in the Family Court?
According to this Bombay High Court ruling, yes. An application under Section 24 of the Hindu Marriage Act is maintainable in proceedings under Order IX Rule 13 CPC.
What is Section 24 of the Hindu Marriage Act?
It provides for maintenance pendente lite, that is, interim maintenance during the pendency of proceedings under the Act.
Did the High Court award maintenance in this case?
No. It set aside the Family Court’s order and sent the application back for a fresh decision after hearing both parties.
Conclusion
The order is brief but practically important: a spouse fighting to reopen an ex parte decree in the Family Court is not shut out from seeking interim financial support in that very proceeding.
Practical takeaway: When filing an Order IX Rule 13 application against an ex parte decree in the Family Court, file a Section 24 application alongside it and rely on Hemaraj Shamrao Umredkar v. Leela if maintainability is questioned.
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