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Judgment
This criminal revision has been preferred by the petitioner/wife challenging the order dated 24.02.2026 passed by the First Additional Principal Judge, Family Court, Jabalpur in MJCR No.463 (452)/2025, whereby the Family Court has dismissed an application under Section 144 of Bharatiya Nagarik Suraksha Sanhita, 2023 (in short 'BNSS') by accepting the objection raised by the respondent/husband in the reply to the application under Section 144 of BNSS about maintainability of the application under Section 144 of BNSS to the effect that the petitioner has not disclosed the factum of her marriage with one Mayur Sudhakar Mangole and has simpliciter pleaded that prior to marriage with the respondent-Sadanlal Jaat, she was divorced from previous/first husband Rajendra Dhurve.
Learned counsel for the petitioner submits that since the petitioner was married to the respondent-Sadanlal Jaat, who thereafter deserted the petitioner, therefore, an application under Section 144 of BNSS was filed by the petitioner seeking monthly maintenance from the respondent making specific pleadings in respect of the petitioner's divorce from first husband-Rajendra Dhurve. He submits that in reply, the respondent made evasive denials of the allegations and in support of the contentions made by way of additional pleas in the reply, the respondent placed on record a copy of marriage certificate of the petitioner with Mayur Sudhakar Mangole, which was not pleaded in the application under Section 144 BNSS by the petitioner/wife and only on that ground i.e. for want of pleadings in respect of marriage of the petitioner with Mayur Sudhakar Mangole, the Family Court has committed an illegality in dismissing the application under Section 144 of BNSS, even without fixing the case for evidence/enquiry that too without recording evidence in that regard. He submits that the application for awarding maintenance cannot be dismissed without making enquiry into the averments made in the application and reply and there is no provision in the CrPC for dismissal of the application under Section 144 of BNSS only by accepting the objection raised by other side in the reply to the application. He also submits that even the application cannot be dismissed taking aid of the provisions of Order VII Rule 11 CPC. He also submits that the objection in respect of prior marriage of the petitioner with Mayur Sudhakar Mangole, raised in the reply required the evidence, therefore, the order passed by the Family Court without recording evidence of the parties is not sustainable. On inter alia contentions he prays for setting aside the impugned order and for allowing the criminal revision.
Learned counsel appearing for the respondent/husband supports the impugned order and prays for dismissal of the criminal revision.
Heard learned counsel for the parties and perused the record.
Perusal of the impugned order as well as the record available shows that after service of summons, the respondent/husband appeared and filed reply to the application under Section 144 BNSS taking objection therein about maintainability of the application vide paragraph (A) of the additional pleas, for want of pleadings in respect of marriage of the petitioner with Mayur Sudhakar Mangole and a certificate in that regard was filed on 23.12.2025 along with the reply to the application for interim maintenance pendent lite. Thereupon, the Family Court fixed the case for arguments on the application for interim maintenance.
Thereafter the case was adjourned on 24.01.2026 due to absence of the counsel for the respondent. Then on 10.02.2026, the Court fixed the case for hearing arguments on the question of maintainability of the application and thereafter by the impugned order dated 24.02.2026, the Family Court dismissed the application for maintenance mainly on the ground that the petitioner has suppressed the factum of her marriage with Mayur Sudhakar Mangole and as such she has not come with the clean hands before the Court and held that the same being abuse of process of law, the application under Section 144 of BNSS deserves to be dismissed and the same was dismissed as such.
Perusal of the impugned order does not show that under which provision the Family Court has exercised its power to dismiss the application. Upon perusal of Section 144 of BNSS, it is clear that it does not prescribe any provision for dismissal of the application for want of pleadings relating to some important facts therein.
In the present case, the petitioner has come with the case that she got married with the respondent and in support whereof, produced on record a marriage certificate issued by Health Officer of the Municipal Corporation, Jabalpur, genuineness of which was required to be examined in the light of the pleadings made by the parties, in the enquiry to be conducted in accordance with the law.
For the sake of arguments it is hereby observed that even if the petitioner is found to have got married with Mayur Sudhakar Mangole, that itself was not sufficient to dismiss the application in the light of decision of Hon'ble Supreme Court in the case of N. Usha Rani and Another vs. Moodudula Srinivas, 2025 SCC Online SC 225, if the petitioner/wife succeeds in proving her marriage with the respondent/husband.
In the case of Rakesh Malhotra v. Krishna Malhotra, (2020) 14 SCC 150, the Hon’ble Supreme Court has held as under:
“11.Since the Parliament has empowered the Court under Section 25(2) of the Act and kept a remedy intact and made available to the concerned party seeking modification, the logical sequittor would be that the remedy so prescribed ought to be exercised rather than creating multiple channels of remedy seeking maintenance. One can understand the situation where considering the exigencies of the situation and urgency in the matter, a wife initially prefers an application under Section 125 of the Code to secure maintenance in order to sustain herself. In such matters the wife would certainly be entitled to have a full-fledged adjudication in the form of any challenge raised before a Competent Court either under the Act or similar such enactments. But the reverse cannot be the accepted norm.”
In the case of Madhusudan Bharadwaj and others v. Mamta Bharadwaj, (2009) 4 MPHT 130, a Coordinate Bench of this court has held as under:
“9-D. As argued, it is true that the opening words of the section 18 are that 'the Magistrate may, after giving the aggrieved person and respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place pass a protection order in favour of the aggrieved person and prohibit the respondent from ......' On perusal, two things are required before passing an order in favour of the aggrieved person; (I) opportunity of hearing to the parties, and (2) on being prima facie satisfied with regard to happening of the domestic violence or likely to happen thereof. For being prima facie satisfied some materials is required. As observed hereinabove and as provided in Rule 6(5) evidence is required as the same is required for disposal of an application under section 125 of CrPC. It cannot be accepted that only upon providing an opportunity of hearing such orders are required to be passed. ..... ..... ...... .....
10.In view of all, as discussed hereinabove, for disposal of the application filed by the respondent, adopting the procedure as laid down for disposing of an application under section 125 of CrPC was required. Admittedly, the same has not been followed by the learned Magistrate. Hence, the order deserves to be set aside.”
Another Coordinate Bench of this court in the case of Smt. Renu Agrawal v. Shri Sanjay Agrawal, 2026 SCC OnLine MP 11916 = Criminal Revision No. 422 of 2015 (at Jabalpur) decided on 22.04.2026, has held as under:
“7.So in my considered opinion the aforesaid contentions raised on behalf of respondent/husband by way of an application under Section 151 of CPC were required to be gone into only after recording evidence of the parties and not as a preliminary objection by way of application under Section 151 of CPC. ..... ..... ..... .....
9.Resultantly, by allowing the criminal revision partly, the matter is remanded to the Family Court with the direction to restore the case to its original number and to decide the application under Section 125 of Cr.P.C. after recording evidence of the parties and after giving due opportunity of hearing to them.”
In the case of Tushar Suresh Thigale v. Archana Tushar Thigale and another, Criminal Writ Petition No. 1466 of 2022 = 2023 Supreme(Online)(Bom) 9669 decided on 26.04.2023, a Coordinate Bench of Bombay High Court held as under:
“12.After going through all these judgments cited, this Court finds that, in any case proceeding requires full-fledged adjudication. The proceeding under Section 125 of the Cr.P.C. itself is in summary nature and therefore, there is no question of stopping the proceeding in between on any application in the nature of Order VII, Rule XI of the C.P.C., as it is such application is not maintainable. The legislature has not provided any such application in maintenance proceeding. This Court therefore finds that, the application under Order VII, Rule XI of the C.P.C. is not at all maintainable. Both the Courts below have rightly rejected the application of the husband.”
In the case of Syed Mohd. Fazle Haider Zaidi v. State of U.P. and others, 2014 SCC OnLine All 15279, a Coordinate Bench of Allahabad High Court held as under:
“6.Having given a thoughtful consideration to the submission of the learned counsel for the applicant, this Court is of the view that in the instant case maintenance has been demanded by the opposite party No. 2 not only for herself, but also for the minor daughter, who, admittedly, is born out of the wedlock with the applicant, as is clear from the agreement filed by the applicant at page 19, therefore, in any case the maintenance application cannot be dismissed at the threshold. Further, in case of Iqbal Bano v. State of U.P. and another (Supra) the Apex Court observed that an application, under Section 125 Cr.P.C., by a divorced Muslim women, even if it is not maintainable, the same can be treated as an application under the provisions of Muslim Women (Protection of Rights on Divorce) Act, 1986. Moreover, in the case of Shabana Bano v. Imran Khan (Supra) the Apex Court had taken a view that the application, even by a divorced Muslim women, would be maintainable, under Section 125 Cr.P.C.
7.So far as the question of delay is concerned, the right to maintenance is a recurring right. On ground of mere delay, the jurisdiction of the Court to entertain the application, under Section 125 Cr.P.C., does not cease. No doubt, it may become a ground to draw adverse inference with regards to the alleged destitution of the claimant. But on that ground, at the threshold, without permitting the parties to lead evidence, the application cannot be thrown out. As admittedly, the parties are yet to lead their evidence and the Court below has fixed a date for that purpose, it is not a fit case for this Court to quash the proceedings at the threshold. Even otherwise, whether the opposite party No. 2 is entitled to any maintenance, in view of the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, would depend on the evidence as to whether at the time of divorce the applicant had provided for maintenance or not in accordance with law laid down by the Apex Court in the case of Daniel Latifi v. Union of India, (2001) 7 SCC 740 (see paras 28, 29 and 36 of the report). As this would be a matter which has to be thrashed out after leading of evidence by the parties, the preliminary objection is not sustainable at this stage.”
In view of the aforesaid discussion and in view of the law laid down in the case of Rakesh Malhotra (Supra); Madhusudan Bharadwaj (Supra); Renu Agrawal (Supra); Tushar Suresh (Supra); and Syed Mohd. (Supra) and in my considered opinion, in any case maintenance application cannot be decided without making enquiry or without recording evidence of the parties and without affording reasonable opportunity of hearing to the parties.
Resultantly, the impugned order being unsustainable deserves to be and is hereby set aside and matter is remanded to the Family Court with the direction to restore the original application under Section 144 of BNSS to its original number and to decide afresh in accordance with law, after recording evidence of the parties and without being influenced by the impugned order.
Parties are directed to remain present before the Family Court on 17.08.2026. It is made clear that if the parties to the proceedings do not appear before the Family Court, it shall issue fresh notice/summons with a view to secure their presence.
With the aforesaid, the criminal revision is partly allowed and disposed of.
Pending application(s), if any, shall stand disposed of.