Maintenance Case Cannot Be Dismissed Hastily Over Lawyer’s Absence: MP High Court

The Madhya Pradesh High Court has held that a Family Court cannot dismiss a maintenance case for want of prosecution merely because the wife or her lawyer was absent during cross-examination, especially after the wife and her children had already completed their evidence.

Setting aside the dismissal of a maintenance plea filed by a woman and her two minor daughters against her husband, Justice Dwarka Dhish Bansal observed that the Family Court should have granted a reasonable opportunity to the petitioners instead of closing the proceedings in haste.

The Court was hearing a criminal revision petition filed by the petitioner and her two daughters challenging the March 12, 2024 order of the Principal Judge, Family Court, Katni, which had dismissed their application under Section 125 of the Code of Criminal Procedure for non-prosecution. The High Court noted that the petitioners had already completed their evidence on February 10, 2024 and thereafter the matter was fixed for the husband’s evidence.

The order records that the husband, had sought adjournments twice on grounds of illness before his evidence could proceed. On March 11, 2024, the husband entered the witness box and exhibited documents. On the same day, junior counsel Manu Tiwari appeared for the petitioners and sought one week’s adjournment, citing illness of the main counsel appearing for the wife and children. However, the Family Court granted only a one-day adjournment and fixed the matter for March 12, 2024.

When nobody appeared on behalf of the petitioners on the next date, the Family Court dismissed the maintenance application at 3:20 pm for want of prosecution. Later the same day, an application seeking restoration of the proceedings was also rejected by the Family Court on the ground that under Section 13 of the Family Courts Act, an advocate does not have an absolute right to appear for a party.

Disagreeing with the approach adopted by the Family Court, the High Court held that the proceedings under Section 125 CrPC are quasi-civil in nature and meant to provide summary relief. The Court observed that procedural laws should not be applied in a rigid manner when substantive rights relating to maintenance are involved.

Justice Bansal said that once the petitioners had already led their evidence and the matter was fixed only for cross-examination of the husband, the Family Court “ought to have granted at least one reasonable opportunity of seven days” as sought by counsel for the petitioners. The Court further held that illness of a lawyer was a circumstance beyond the control of the litigants and deserved consideration under Order XVII Rule 1(2)(b) of the Civil Procedure Code.

The High Court also underlined that even if the petitioners or their lawyer failed to appear, the Family Court could have proceeded ex parte instead of dismissing the maintenance plea altogether. “The Court was competent to proceed further by following the procedure given under Explanation to Order XVII Rule 2 of the CPC,” the order stated.

Calling the Family Court’s order a “glaring example of non-application of mind,” the High Court restored the maintenance proceedings to their original number and directed the Family Court to decide the matter afresh after giving both parties due opportunity of hearing. The parties have now been directed to appear before the Family Court on June 29, 2026.

The Court additionally noted that after permitting a lawyer to represent the petitioners, the Family Court could not later refuse to entertain an adjournment request on the ground that an advocate had no automatic right of audience.

It also observed that fresh notice ought to have been issued to the petitioners if the court wanted their personal presence, particularly when additional documents had been filed by the husband during evidence. Referring to Supreme Court rulings including Bashir Ahmed v. Mehmood Hussain Shah, the High Court reiterated that courts must adopt a justice-oriented approach in maintenance proceedings involving women and children.

Case Title: Smt. Rashi Moolchandani and Others v. Komal Moolchandani

Date of Order: May 7, 2026

Bench: Justice Dwarka Dhish Bansal