Allahabad HC: Maintenance Orders Under Section 125 CrPC Can Be Recalled Under Section 127; Bar Under Section 362 CrPC Not Applicable

The Allahabad High Court has ruled that orders issued under Section 125 CrPC, whether final or interim, can be recalled or modified under Section 127 CrPC. Consequently, the bar imposed by Section 362 CrPC does not apply to such cases.

Justice Arun Kumar Singh Deshwal, perusing Section 362 CrPC, noted that when any provision within the CrPC permits the recall or alteration of a judgment or final order, the bar under Section 362 CrPC does not apply. This is applicable to Section 125 CrPC.

For context, Section 362 CrPC states that a final judgment or order cannot be recalled or reviewed after it is signed unless otherwise provided by the code or another law.

These observations were made while rejecting a husband’s application challenging a family court order. The family court had allowed a recall application filed by his wife and daughter (opposite parties 2 and 3).

The recall application was related to the dismissal of an application for want of prosecution, filed by the opposite parties seeking maintenance under Section 125 CrPC.

In the contested order, the lower court observed that in proceedings under Section 125 CrPC, if a case is dismissed for want of prosecution, it can be recalled under Section 126(3) CrPC, empowering the court to issue an appropriate order as circumstances require.

Before the High Court, the applicant’s counsel argued that the recall order was incorrect, contending that once an application under Section 125 CrPC is dismissed for want of prosecution, it cannot be recalled or modified due to the bar of Section 362 CrPC.

Conversely, the counsel for the opposite parties argued that Section 362 CrPC contains exceptions, and Section 127 CrPC allows the court to alter or modify any order passed under Section 125 CrPC.

In its decision, the single judge emphasized that Section 362 CrPC provides certain exceptions. Regarding orders passed under Section 125 CrPC, a magistrate has the power under Section 126(3) CrPC to issue just and proper orders.

The Court also noted that Section 127 CrPC allows the court that issued a maintenance order under Section 125 CrPC, including interim maintenance orders, to make necessary alterations.

“In Section 125 CrPC using of expression ‘as the Magistrate from time to time direct’, the use of expression from time to time has purpose and meaning. It clearly contemplates that the order passed u/s 125(1) CrPC, the Magistrate may have to exercise jurisdiction from time to time. The above legislative scheme indicates that Magistrate does not become functus officio after passing of the order u/s 125 CrPC,” the Court added.

Considering this, the Court explicitly affirmed that an order issued under Section 125 CrPC, whether final or interim, is subject to recall or alteration under Section 127 CrPC. Consequently, the restriction imposed by Section 362 CrPC does not apply in these instances.