# Anup Kumar Revisionist v. Smt. Pratibha Singh Kushwaha

- **Citation:** (2026) 3 ILRA 947
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-03-30
- **Case number:** Criminal Revision Defective No. 141 of 2026
- **Bench:** Praveen Kumar Giri
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anup-kumar-revisionist-v-smt-pratibha-singh-kushwaha-54339
- **Pages:** 7

## Text

3 All. Anup Kumar Vs. Smt. Pratibha Singh Kushwaha
947

15. In pursuance of the directions issued by this court Sri Kushagra Dixit, Advocate, has
brought the ITRs of opposite party No. 2 in sealed cover. The same is opened in the court. ITRs of
opp. party No. 2, Mohd. Saleem, of the AY 2023-24 and 2024-25, indicate that the opposite party
No. 2 is an Architect and in the AY 2023-24 his total income was Rs. 4,85,290.00 and in the AY
2024-25 his income was Rs. 5,07,680.00.

16. After going through the record and hearing learned counsel for the petitioner as well as the
learned Counsel for the Income Tax Department and Sri Rao Narendra Singh, learned A.G.A.I, one
fact has come before this court that the opposite party No. 2 is an Architect, which is very much
clear after looking into the ITRs of opp. party No. 2 for the AYs 2023-24 and 2024-25 and he is
also having his income.

17. This fact requires re-consideration by the court below, therefore, the order dated 19-012026 passed by Ld. Court of Additional Chief judicial Magistrate-Ist, Court No. 25, Lucknow, in
the Complaint No. 2268/2024 styled as Mariya Zafar Vs. Mohd. Saleem & Ors. Us. 12 D. V. Act
Ps. Kaisergabh, District Lucknow, is hereby set aside and the said court is directed to take fresh
decision in the matter in the light of judgment of Hon'ble the Supreme Court in the case of Rajnesh
versus Neha and others, (2021) 2 SCC 324, within 6 weeks from the date of production of certified
copy of this order, after affording opportunity of hearing to the parties concerned. With these
observations/directions this application is allowed.

18. The petitioner may also be provided copy of the ITRs of opposite party No. 2 of AYs
2023-24 and 2024-25, filed in the court today.
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(2026) 3 ILRA 947
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.03.2026

BEFORE

THE HON'BLE PRAVEEN KUMAR GIRI, J.

Criminal Revision Defective No. 141 of 2026

Anup Kumar ...Revisionist
Versus
Smt. Pratibha Singh Kushwaha ...Opposite Party

Issues for Consideration
(i) Whether a criminal revision against an ex parte maintenance order passed under Section 144 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 is maintainable without first availing the statutory remedy provided
under Section 145(2) BNSS for setting aside the ex parte order?
(ii) Whether the Family Court/Judicial Magistrate is the appropriate forum to consider an application for recall
of an ex parte maintenance order passed under Section 144 BNSS?
(iii) Whether the High Court should exercise revisional jurisdiction under Section 19(4) of the Family Courts
Act, 1984 before the aggrieved party exhausts the remedy available under Section 145(2) BNSS?
948 INDIAN LAW REPORTS ALLAHABAD SERIES
Headnotes
Bharatiya Nagarik Suraksha Sanhita, 2023 - Ss. 144 and 145(2) - Family Courts Act, 1984 - S.
19(4) - Maintenance proceedings - Ex parte order awarding maintenance - Challenge before
High Court by criminal revision - Availability of statutory remedy for setting aside ex parte order
- Maintainability of revision.

HELD: Section 145(2) BNSS specifically provides that where an order for maintenance under Section 144
BNSS has been passed ex parte, the person against whom such order has been made may apply before the
concerned court for setting aside the ex parte order by showing good cause. The statute itself vests
jurisdiction in the Judicial Magistrate or Family Court to consider such request and to afford an opportunity to
contest the proceedings on merits. Consequently, a criminal revision directly challenging an ex parte
maintenance order, without availing the statutory remedy under Section 145(2) BNSS, is not maintainable and
is liable to be dismissed on the ground of availability of an efficacious alternative remedy. [Paras 7, 8, 10 and
12]

Bharatiya Nagarik Suraksha Sanhita, 2023 - S. 145(2) - Ex parte maintenance order - Recall
jurisdiction - Family Court/Judicial Magistrate.
HELD: The power to recall an ex parte order passed under Section 144 BNSS is specifically conferred upon
the court which passed the order. Therefore, where maintenance has been awarded ex parte, the aggrieved
party must first approach the Family Court or Judicial Magistrate concerned by moving an application under
Section 145(2) BNSS. The statutory authority entrusted with such power should be permitted to exercise the
jurisdiction vested in it before the matter is brought before the High Court. [Paras 7, 8 and 10]

Family Courts Act, 1984 - S. 19(4) - Maintenance proceedings under Chapter IX
Cr.P.C./corresponding provisions of BNSS - Revisional jurisdiction of High Court - Stage of
invocation.

HELD: In matters arising from maintenance proceedings before the Family Court, recourse to the High Court
under Section 19(4) of the Family Courts Act becomes available after the competent court has considered and
passed an order in exercise of its statutory jurisdiction. Where an ex parte maintenance order is sought to be
challenged, the aggrieved party must first pursue the remedy under Section 145(2) BNSS before approaching
the High Court. [Para 8]

Bharatiya Nagarik Suraksha Sanhita, 2023 - S. 145(2) - Application for setting aside ex parte
order - Delay in approaching court - Condonation of delay.

HELD: If there is delay in filing an application under Section 145(2) BNSS for recall of an ex parte
maintenance order, it is open to the applicant to move an appropriate application for condonation of delay
supported by affidavit, where permissible in law, and such application is required to be considered by the
competent court in accordance with law. [Para 11]

Criminal Revision - Ex parte maintenance order - Alternative statutory remedy available -
Revision dismissed.

HELD: Since the impugned order dated 20.08.2025 awarding maintenance of Rs.30,000/- per month had
been passed ex parte and a specific statutory remedy for recall of the order was available under Section
145(2) BNSS, the revision was not maintainable. The revisionist was relegated to the remedy before the
Family Court. [Paras 9 to 14]

Revision dismissed. (E-14)

Case Law Cited
-None-
3 All. Anup Kumar Vs. Smt. Pratibha Singh Kushwaha
949
List of Acts / Statutes/Books
Bharatiya Nagarik Suraksha Sanhita, 2023; Family Courts Act, 1984; Code of Criminal Procedure, 1973.

List of Keywords
Maintenance; Ex parte maintenance order; Alternative remedy; Recall of ex parte order; Family Court;
Maintainability of revision; Revisional jurisdiction; Condonation of delay.

Case Arising From
Ex parte judgment and order dated 20.08.2025 passed by the Principal Judge, Family Court, Jhansi in Criminal
Case No. 762 of 2025, Smt. Pratibha Kushwaha v. Anup Kumar, under Section 144 of the Bharatiya Nagarik
Suraksha Sanhita, 2023

Appearance for Parties
For the Revisionist: Sri Kuldeep Kumar and Sri Ravi Prakash Chaurasiya.
For the Respondents: Sri Raghvendra Yadav

(Delivered by Hon'ble Praveen Kumar Giri, J.)

1. Today, Shri Raghvendra Yadav, Advocate has filed his vakalatnama on behalf of the
opposite party, the same is taken on record.

2. Learned counsel for the revisionist submits that he has preferred the instant criminal
revision along with delay condonation application with the relief which has been mentioned in the
prayer clause of the revision.

3. The relief which has been mentioned in the revision is delineated below:-

"A. To Set-a-side the impugned ex-parte judgment and order dated 20.08.2025 came to
knowledge on 01.01.2026 and received on 06.01.2026 passed in Crimal Case No. 762/2025 viz;
Smt Pratibha Kushwaha Versus Anup Kumar Under Section 144 BNSS 2023 passed by the learned
Principal Judge Family Court Jhansi (as contained in Annexure No. 1) be quashed in the interest
of justice please.

B. To suspend the operation and execution of the orders impugned dated 20.08.2025
during the pendency of the present Criminal Revision and summon the entire record of the Cri
Case No.762 of 2025; viz; Smt Pratibha Kushwaha -Versus- Anup Kumar from the court of learned
Principal Judge Family Court Jhansi decided on 20.08.2025 AND the entire record of the pending
execution case under section 147 BNSS 2023 Cri Misc Case no. 1471/2025 viz; Smt Pratibha
Kushwaha -Versus- Anup Kumar from the court of learned Principal Judge Family Court Jhansi"

4. Learned counsel for the revisionist submits that in the present case, an ex-parte order dated
20.08.2025 under Section 144 B.N.S.S. (corresponding Section 125 Cr.P.C.) has been passed by
the Principal Judge, Family Court, Jhansi, whereby the revisionist has been directed to pay
maintenance of Rs.30,000/- per month to the opposite party without affording an opportunity of
hearing to the revisionist. The operative portion of the order dated 20.08.2025 as well as the
provision of Section 144 B.N.S.S. (corresponding Section 125 Cr.P.C.) are delineated below
respectively:
950 INDIAN LAW REPORTS ALLAHABAD SERIES
"
आदेश

आवेददका श्रीमती प्रनतभा का प्राथथनापत्र 3A1 एक पक्षीय रूप से आंसशक रूप से स्वीकार ककया िाता
है। पवपक्षी को आदेसशत ककया िाता है कक वह आवेदनपत्र प्रस्तुत करने के ददनांक 29-05-2025 से
भरण पोषण की धनरासश के रूप में आवेददका प्रनतभा को 30000/ रु० ( तीस हिार रूपया) प्रनतमाह
अदा करे।
"

"144. Order for maintenance of wives, children and parents.

(1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself; or

(b) his legitimate or illegitimate child, whether married or not, unable to maintain itself;
or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained
majority, where such child is, by reason of any physical or mental abnormality or injury unable to
maintain itself; or

(d) his father or mother, unable to maintain himself or herself,

a Magistrate of the first class may, upon proof of such neglect or refusal, order such
person to make a monthly allowance for the maintenance of his wife or such child, father or
mother, at such monthly rate as such Magistrate thinks fit and to pay the same to such person as
the Magistrate may from time to time direct:

Provided that the Judicial Magistrate may order the father of a female child referred to
in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied
that the husband of such female child, if married, is not possessed of sufficient means:

Provided further that the Magistrate may, during the pendency of the proceeding
regarding monthly allowance for the maintenance under this sub-section, order such person to
make a monthly allowance for the interim maintenance of his wife or such child, father or mother,
and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the
same to such person as the Magistrate may from time to time direct:

Provided also that an application for the monthly allowance for the interim maintenance
and expenses of proceeding under the second proviso shall, as far as possible, be disposed of
within sixty days from the date of the service of notice of the application to such person.

(2) Any such allowance for the maintenance or interim maintenance and expenses of
proceeding shall be payable from the date of the order, or, if so ordered, from the date of the
application for maintenance or interim maintenance and expenses of proceeding, as the case may
be.

(3) If any person so ordered fails without sufficient cause to comply with the order, any
such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in
the manner provided for levying fines, and may sentence such person, for the whole or any part of
each month's allowance for the maintenance or the interim maintenance and expenses of
3 All. Anup Kumar Vs. Smt. Pratibha Singh Kushwaha
951
proceeding, as the case may be, remaining unpaid after the execution of the warrant, to
imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this
section unless application be made to the Court to levy such amount within a period of one year
from the date on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living
with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal
stated by her, and may make an order under this section notwithstanding such offer, if he is
satisfied that there is just ground for so doing.

(4) No wife shall be entitled to receive an allowance for the maintenance or the interim
maintenance and expenses of proceeding, from her husband under this section if she is living in
adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are
living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section is
living in adultery, or that without sufficient reason she refuses to live with her husband, or that they
are living separately by mutual consent, the Magistrate shall cancel the order."

5. Learned counsel for the revisionist submits that the family court has not correctly assessed
the income of the revisionist, who is a retired Air Force personnel. He further submits that there is
no reliable evidence to show that he is earning such an amount and the maintenance of Rs.30,000/-
per month is excessive and shall be reduced.

6. Learned counsel for the opposite party submits that the wife has no source of income and is
living separately due to the misconduct of the husband and despite receiving notice, the husband
has not appeared before the court and due to his deliberate non-appearance, the order dated
20.08.2025 has been passed ex-parte directing to the revisionist-husband to pay Rs. 30,000/- per
month to the wife-opposite party. He further submits that against an ex-parte order passed under
Section 144 B.N.S.S., the remedy lies under Section 145(2) B.N.S.S. (corresponding Section
126(2) Cr.P.C.).

7. This Court has perused the record annexed with the paper-book and finds that the revisionist
cannot challenge the ex-parte order before this Court as the same has been passed by the family
court in accordance with law after due service of notice and the revisionist has an efficacious and
alternative remedy to move an appropriate application under Section 145(2) of the B.N.S.S. before
the trial court for setting aside the ex-parte proceedings and for seeking an opportunity to contest
the case on merits. Thus, without availing such statutory remedy, the present revision is not
maintainable and is liable to be dismissed on the ground of maintainability. The provision of
Section 145 B.N.S.S. (corresponding Section 126 Cr.P.C.) is delineated below:

"145. Procedure.-

(1) Proceedings under section 144 may be taken against any person in any district-

(a) where he is; or

(b) where he or his wife resides; or
952 INDIAN LAW REPORTS ALLAHABAD SERIES

(c) where he last resided with his wife, or as the case may be, with the mother of the
illegitimate child; or

(d) where his father or mother resides.

(2) All evidence in such proceedings shall be taken in the presence of the person against
whom an order for payment of maintenance is proposed to be made, or, when his personal
attendance is dispensed with, in the presence of his advocate, and shall be recorded in the manner
prescribed for summons-cases:

Provided that if the Magistrate is satisfied that the person against whom an order for
payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully
neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex
parte and any order so made may be set aside for good cause shown on an application made
within three months from the date thereof subject to such terms including terms as to payment of
costs to the opposite party as the Magistrate may think just and proper.

(3) The Court in dealing with applications under section 144 shall have power to make
such order as to costs as may be just."

8. This Court is of the opinion that against the ex-parte order passed under Section 144
B.N.S.S. (corresponding Section 125 Cr.P.C.), the jurisdiction is vested in the Judicial Magistrate
or the Family Court to recall the order under Section 145(2) B.N.S.S. (corresponding Section
126(2) Cr.P.C.), therefore, the power should be exercised by the Judicial Magistrate or the Family
Court rather than by filing a revision before this Court and if any order is passed by the Judicial
Magistrate or the concerned Judge, Family Court, under Section 145(2) B.N.S.S., thereafter the
revision should be preferred before this Court under Section 19(4) of the Family Courts Act, 1984.
The provisions of Section 19 of the Family Courts Act are delineated below:

"19. Appeal.- (1) Save as provided in sub-section (2) and notwithstanding anything
contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure,
1973 (2 of 1974) or in any other law, an appeal shall lie from every judgment or order, not being
an interlocutory order, of a Family Court to the High Court both on facts and on law.

(2) No appeal shall lie from a decree or order passed by the Family Court with the
consent of the parties or from an order passed under Chapter IX of the Code of Criminal
Procedure, 1973 (2 of 1974):

Provided that nothing in this sub-section shall apply to any appeal pending before a High
Court or any order passed under Chapter IX of the Code of Criminal Procedure 1973 (2 of 1974)
before the commencement of the Family Courts (Amendment) Act, 1991 (59 of 1991).

(3) Every appeal under this section shall be preferred within a period of thirty days from
the date of the judgment or order of a Family Court.

(4) The High Court may, of its own motion or otherwise, call for and examine the
record of any proceeding in which the Family Court situate within its jurisdiction passed an
order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of
satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory
order, and, as to the regularity of such proceeding.

(5) Except as aforesaid, no appeal or revision shall lie to any court from any judgment,
order or decree of a Family Court.
3 All. Santosh Vs. State of U.P. & Ors.
953

(6) An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two
or more Judges."

9. Considering the facts and circumstances of the case and submissions made by learned
counsel for the parties, this Court finds that the order dated 20.08.2025 passed by the Principal
Judge, Family Court, Jhansi, is an ex-parte order granting Rs. 30,000/- per month maintenance to
the wife, which has been passed after due service of notice upon the revisionist.

10. This Court further finds that a specific statutory remedy is available under Section 145(2)
of the B.N.S.S. for setting aside such ex-parte order before the trial court itself by showing
sufficient cause and seeking an opportunity to contest the case on merits. However, in the present
case, instead of availing the aforesaid statutory remedy, the revisionist has directly approached this
Court by way of the present revision, which, in the considered opinion of this Court, is not in
consonance with the provisions of Section 145(2) of the B.N.S.S. Therefore, the revisionist is
directed to approach the concerned family court and move an application under Section 145(2)
B.N.S.S. for recalling the order dated 20.08.2025.

11. In case there is any delay in approaching the trial court, it shall be open to the revisionist to
move an appropriate application for condonation of delay along with affidavit, if so permissible
under law, and the same shall be considered by the concerned court in accordance with law.

12. In view of the availability of such efficacious alternative remedy, this Court is of the
considered opinion that the present revision is not maintainable and is liable to be dismissed at this
stage.

13. With the aforesaid directions, this revision is dismissed on the ground of availability of
alternative remedy.

14. It is open to the revisionist to approach the concerned family court in accordance with law,
if so advised, to avail the aforesaid remedy.
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(2026) 3 ILRA 953
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.03.2026

BEFORE

THE HON'BLE MANOJ BAJAJ, J.

Criminal Revision No. 710 of 2026

Santosh ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Issues for Consideration