Allahabad High Court

AJAY LAKHERAversusSTATE OF U.P. AND ANOTHER

Decided: 8 September 2026
Bench: PRASHANT BILGAIYAN REGISTRAR CRIMINAL

Holding

A criminal revision against an ex parte order under Section 125 Cr.P.C. is not maintainable where the remedy of filing an application under Section 126(2) Cr.P.C. before the trial court is available.

Summary

The petitioners, Ajay Lakhera, filed a criminal revision challenging an ex parte maintenance order dated 1 June 2026 passed by the Principal Judge of the Family Court, Mahoba, under Section 125 of the Criminal Procedure Code. They sought quashing and a stay of the order, arguing that the order was final and that they preferred the revision instead of filing an application under Section 126(2) Cr.P.C. or Section 145(2) of the B.N.S.S. for recall. The State opposed, contending that the appropriate remedy is an application under Section 126(2) Cr.P.C. before the trial court and that the revision is therefore not maintainable. The Court referred to its earlier decisions in Anup Kumar v. Pratibha Kushwaha and Abhishek Gond v. State of U.P., which held that an ex parte order under Section 125 can be challenged only by an application under Section 126(2) Cr.P.C. The Court concluded that an efficacious alternative remedy exists and dismissed the revision on maintainability grounds. Consequently, the petitioners were directed to approach the family court under the prescribed provision.

Issues considered

Whether a criminal revision is maintainable against an ex parte maintenance order passed under Section 125 Cr.P.C.
Whether the appropriate remedy for recalling such an ex parte order is an application under Section 126(2) Cr.P.C. (or Section 145(2) B.N.S.S.) before the trial court.

Legislation cited

Code of Criminal Procedure, 1973 — s. 125, 126

Subjects

maintenance
Section 125 CrPC
ex parte order
revision
Section 126(2) CrPC
maintainability
family court

Judgment

HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL REVISION No. - 5498 of 2026

Ajay Lakhera
.....Revisionist(s)
Versus

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

Counsel for Revisionist(s) : Ajay Kumar Pandey, Jaideep Tripathi
Counsel for Opposite Party(s) : G.A.

Court No. - 86
HON'BLE PRAVEEN KUMAR GIRI, J.

1. Heard Sri Jaideep Tripathi, learned counsel for the revisionist and Sri
Sunil Kumar, learned A.G.A. for the State.

2. Learned counsel for the revisionist submits that the instant criminal
revision has been preferred with the relief which has been mentioned in
the prayer clause. The relief mentioned in the prayer clause of the revision
is delineated below:-

"It is, therefore most respectfully prayed that this Hon'ble Court may
graciously be pleased to quash the order of maintenance dated 01-06-
2026 passed by Principal Judge (Family Court), Mahoba in maintenance
Case No. 338 of 2023, (Smt. Anjali Vs. Ajay Lakhera) under section 125
Cr.P.C., Police Station-Kotwali Mahoba, District-Mahoba with all its
consequential effects, during the pendency of the present revision before
this Hon'ble Court.

It is further prayed that this Hon'ble Court may be pleased to stay the
effect and operation of the order of maintenance dated 01-06-2026
passed by Principal Judge (Family Court), Mahoba in maintenance Case
No. 338 of 2023, (Smt. Anjali Vs. Ajay Lakhera) under section 125
Cr.P.C., Police Station-Kotwali Mahoba, District-Mahoba, during the
pendency of the present revision before this Hon'ble Court."

3. Learned counsel for the revisionist submits that against the ex parte
final order dated 01.06.2026 passed under Section 125 Cr.P.C., the
CRLR No. 5498 of 2026
2

present revision has been preferred.

4. Learned counsel for the revisionist further submits that by the ex parte
order, the application filed under Section 125 Cr.P.C. was finally allowed.
He further submits that there is a provision for filing an application under
Section 126(2) Cr.P.C./145(2) B.N.S.S. for recalling the ex parte order.
Learned counsel for the revisionist further submits that he does not want
to press this case on merit and he shall raise all the grievances by filing an
application under Section 126(2) Cr.P.C./145(2) B.N.S.S. before the trial
court.

5. Shri Sunil Kumar, learned A.G.A. assisted the Court and submitted that
there is a provision under Section 126(2) Cr.P.C./145(2) B.N.S.S. for
filing an application for recalling the ex parte order and the same can be
availed before the trial court, therefore, the revision is liable to be
dismissed on the ground of maintainability. For ready reference Section
126 Cr.P.C. is being delineated below :-

"126. Procedure.

(1) Proceedings under section 125 may be taken against any person in
any district-

(a) where he is, or

(b) where he or his wife resides, or

(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 pleader, 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
CRLR No. 5498 of 2026
3

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 125 shall have
power to make such order as to costs as may be just."

6. Learned A.G.A. further submits that this aspect has already been
decided by this Court in Criminal Revision Defective No.141 of 2026
(Anup Kumar Vs. Smt. Pratibha Kushwaha and others) vide order
dated 30.03.2026 and a coordinate Bench of this Court in Criminal
Revision No.2099 of 2026 (Abhishek Gond vs. State of U.P. and
others) vide order dated 01.04.2026, has also held that as per Section
126(2) Cr.P.C., against an ex parte order passed in an application under
Section 125 Cr.P.C., the remedy available to the revisionist is to move an
application under Section 126(2) Cr.P.C. before the concerned family
court.

7. Accordingly, the revision is dismissed at this stage on the ground of
maintainability as there is an alternative, efficacious remedy available
under Section 126(2) Cr.P.C./145(2) B.N.S.S. for filing an application
before the trial court and the revisionist is at liberty to avail the said
remedy, if so advised.

(Praveen Kumar Giri,J.)
September 9, 2026
K.Tiwari

Digitally signed by :-
KRISHNA KANT TIWARI
High Court of Judicature at Allahabad

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