Allahabad High Court

MOHAMMAD SHAMSHIR KHANversusSTATE OF U.P. AND ANOTHER

Decided: 18 March 2026
Bench: HARVIR SINGH

Holding

The Court held that the 20‑Oct‑2016 maintenance order was not ex parte and that the 24‑Sep‑2018 dismissal of the revisionist’s Section 126(2) application was lawful, thereby dismissing the revision.

Summary

The revisionist, Mohammad Shamshir Khan, challenged a family court order dated 20 October 2016 that awarded Rs 10,000 per month as maintenance, claiming it was ex parte and beyond his means. He also contested the family court’s dismissal of his application under Section 126(2) Cr.P.C. on 24 September 2018. The High Court examined whether the 20‑Oct‑2016 order was indeed ex parte and whether the revisionist had full knowledge of the pending Section 125 petition, noting earlier dismissals of related revisions and an interim maintenance order of Rs 3,000. The Court held that the 20‑Oct‑2016 order was not ex parte and that the 24‑Sep‑2018 dismissal was lawful, confirming both orders. Consequently, the revision was dismissed, the revisionist was directed to clear arrears within three months, and the opposite party was permitted to seek execution or a hike in maintenance under Section 127 Cr.P.C. if necessary.

Issues considered

Whether the family court order of 20‑Oct‑2016 awarding Rs 10,000 maintenance was an ex parte order liable to be set aside.
Whether the dismissal of the revisionist’s application under Section 126(2) Cr.P.C. on 24‑Sep‑2018 was in accordance with law given his knowledge of the pending Section 125 petition.
Whether the revisionist can be compelled to pay outstanding arrears and what execution measures are available.
Whether the opposite party may seek a revision of the maintenance amount under Section 127 Cr.P.C. due to changed circumstances.

Legislation cited

Code of Criminal Procedure, 1973 — s. 125, 126(2), 127, 128
Constitution of India — s. Article 227
Limitation Act, 1963 — s. 5

Subjects

maintenance
Section 125 CrPC
Section 126 CrPC
ex parte order
revision
family court
arrears
execution
Section 127 CrPC
Limitation Act

Judgment

HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL REVISION No. - 3990 of 2018

Mohammad Shamshir Khan
.....Revisionist(s)
Versus

State of U.P. and Another
.....Opposite
Party(s)

Counsel for Revisionist(s) : Divya Ojha, Sandeep Pandey,
Shailendra Kumar Rai
Counsel for Opposite Party(s) : Abhishek Kumar Yadav, Ashutosh
Vaish, Bhola Nath Yadav, G.A., Prem
Singh, Tarun Kumar Srivastava, Uns
Ahmad Siddiqui

Court No. - 86
HON'BLE HARVIR SINGH, J.

1. Heard learned counsel for the parties and perused the material available
on record.

2. The instant revision has been filed against order dated 20.10.2016
passed by learned Family Court under Section 125 Cr.P.C. in Case No.
127 of 2010 as well as order dated 24.09.2018 passed in Criminal Case
No. 26 of 2018 under Section 126(2) Cr.P.C.

3. The order dated 20.10.2016 is an ex parte order wherein a sum of Rs.
10,000/- was awarded as monthly maintenance to opposite party no. 2.
However, aggrieved by order dated 20.10.2016, the revisionist herein
moved an application under Section 126(2) Cr.P.C., on behalf of the
revisionist was dismissed by the learned Family Court vide order dated
24.09.2018.

4. The factual matrix leading to the filing of the instant revision is that
the revisionist, in the meantime, also filed another Criminal Revision
Defective No. 124 of 2016 against the interim order passed by learned
Family Court thereby awarding a sum of Rs. 3,000/- as interim
maintenance in respect of application moved under Section 125 Cr.P.C.
The said Revision No. 124 of 2016 moved on behalf of the present
revisionist before this Court, was dismissed vide order dated 08.03.2016
CRLR No. 3990 of 2018
2

holding that the amount of interim maintenance passed by learned Family
Court is in accordance with law and calls for no interference. In the
meantime, the opposite party no. 2 also filed a petition under Article 227
of the Constitution bearing no. 1850 of 2018, the said petition under
Article 227 was disposed of vide order dated 25.10.2018 passed by this
Court. The only revision filed by the revisionist herein bearing number
3990 of 2018 is pending disposal against both the orders dated 20.10.2016
and 24.09.2018.

5. Apart from above, the opposite party no. 2 also moved a Criminal
Revision No. 5611 of 2024 before this Court, which has been dismissed
vide order dated 27.10.2025. The same relates to the compliance of the
order passed in Execution (under Section 128 Cr.P.C.) by the learned
Family Court. Hence, the revision no. 3990 of 2018 is taken up for
disposal.

6. Learned counsel for the revisionist submitted that the revisionist is a
poor person and is residing in a joint accommodation. The amount of Rs.
10,000/- awarded by learned Family Court vide order dated 20.10.2016 is
exorbitant, excessive and beyond the final resources of the revisionist. He
further submitted that the revisionist is having a small shop and is
deriving income from the said shop, which is on the lower side and is not
capable of paying the amount of Rs. 10,000/- per month awarded by the
learned Family Court vide order dated 20.10.2016.

7. Besides that another revision was also filed against the order passed in
126(2) Cr.P.C., Misc. Criminal Case No. 26 of 2018 (Mohammad
Shamshir vs. Asifa Siddiqui) by the revisionist, for setting aside the said
ex parte order dated 20.10.2016. On a fair consideration of the matter, the
learned Family Court vide order dated 24.09.2018 dismissed the
application moved by the revisionist under Section 126(2) Cr.P.C. on the
ground that the revisionist was having full and complete knowledge of the
pendency of petition no. 127 of 2010 moved under Section 125 Cr.P.C.,
inasmuch as the revisionist appeared in court and filed his written
statement. After filing of the written statement, an interim order dated
11.09.2015 awarding a sum of Rs. 3,000/- per month as interim
maintenance was passed, directing to opposite party no. 2 to pay the
CRLR No. 3990 of 2018
3

same. Aggrieved by order dated 11.09.2015, the revisionist herein moved
a Criminal Revision Defective No. 124 of 2016, which was dismissed by
this Court on 08.03.2016. The order passed by the co-ordinate Bench of
this Court dated 08.03.2016 in Revision Defective No. 124 of 2016 is
enumerated as below:-

"The present revision as per the report of Stamp Reporter dated 3.3.2016
is beyond 84 days.

Heard Ms. Salma Bano, learned counsel for the revisionist and Sri I.B.
Yadav, learned A.G.A for the State.

The revisionist by means of this revision has challenged the order dated
11.9.2015 passed by Special Judge, Family Court/A.D.J. Allahabad in
Case No. 127 of 2010 under Section 125 Cr.P.C.

I have gone through the revision along with affidavit filed in support of
this revision, as well as the impugned order and I do not find that the
impugned order suffers from any illegality or infirmity requiring any
interference by this Court. I find no merit in the present revision as such
while dismissing the application u/s 5 of the Limitation Act, I dismiss the
present revision against the impugned order."

7. Having considered the averments made by learned counsel for the
revisionist, as far as the order dated 24.09.2018 is concerned, the same
has been passed in accordance with law, there appears to be no illegality
in the order dated 24.09.2018 for the reason that the pendency of main
petition under Section 125 Cr.P.C., bearing no. 127 of 2010 was in
complete and full knowledge of the revisionist, inasmuch as the
revisionist filed the written statement in the said application. Moreover,
against the interim order passed on 11.09.2015, the revisionist herein
moved a revision before this Court and the said revision no. 124 of 2016
was also dismissed. Hence, by no stretch of imagination and as per the
available record, it cannot be considered and presumed that the revisionist
was not having the knowledge of the pendency of said petition no. 127 of
2010 moved under Section 125 Cr.P.C. Therefore, the order dated
24.09.2018 appears to have been passed in accordance with law and is
thereby confirmed.
CRLR No. 3990 of 2018
4

8. Once, the order dated 24.09.2018 has been confirmed by this Court,
which has been passed by the learned Family Court in respect of order
dated 20.10.2016 by which the legality/illegality of the said order dated
20.10.2016 was challenged on the ground, that the said order was an ex
parte order, whereas the record shows that the said order dated
20.10.2016 is not an ex parte order under any imagination or the
circumstances or the record available before this Court.

9. Under the circumstances, the instant revision is hereby dismissed. No
further order is required to be passed in respect of order dated 20.10.2016
passed by learned Family Court.

10. As is evident from the record, the parties are ad litem from the year
2010 and about 16 years have gone, the revisionist has partly complied
with the order dated 20.10.2016 and arrears of maintenance amount are
still pending against the revisionist, it is directed that the revisionist shall
forthwith clear the outstanding arrears due upon him in another three
months.

11. In the event, the revisionist fails to clear the amount of arrears, the
opposite party no. 2 shall be at liberty to move an appropriate execution
application before the concerned family court. On consideration of the
execution application, the learned Family Court shall be at liberty to
recover the payment of arrears, if the situation so warrants, by attaching
the property of the revisionist and further, if the situation so warrants,
auctioning the same by way of laid down procedure, as has been done in
the case of Recovering the amount of land revenue. Furthermore it is
directed that about ten years have already elapsed when the order of
amount of maintenance of Rs. 10,000/- was passed by the learned Family
Court vide order dated 20.10.2016, hence sufficient circumstances have
changed due to price hike of the commodities and opposite party no. 2
shall be at liberty to move any application under Section 127 Cr.P.C.
seeking the hike in the amount of maintenance, in accordance with law.

(Harvir Singh,J.)
March 19, 2026
Kirti

Digitally signed by :-
SMT KIRTI MISHRA
High Court of Judicature at Allahabad

Continue reading with your account

Checking your session…