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

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

Examining the directive of Section 362 CrPC, Justice Arun Kumar Singh Deshwal’s bench observed that if the CrPC allows for the recall or alteration of a judgment or final order, the bar under Section 362 CrPC will not apply, as is the situation with Section 125 CrPC.

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

These observations were made while rejecting an application from a husband challenging a family court’s order, which granted a recall application filed by his wife (opposite party no. 2) and daughter (opposite party no. 3).

The recall application pertained to the dismissal of a maintenance application (for lack of prosecution) filed by the opposite parties under Section 125 CrPC.

In the contested order, the lower court noted that in proceedings under Section 125 CrPC, if a case is dismissed for lack of prosecution, it can be recalled under Section 126(3) CrPC, where the court has the authority to issue appropriate orders based on the circumstances.

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

Conversely, the counsel for the opposite parties argued that Section 362 CrPC itself includes an exception, as noted in Section 127 CrPC, which permits the court to alter or modify any order passed under Section 125 CrPC.

The single judge, in his order, highlighted that the bar under Section 362 has specific exceptions and that, concerning orders passed under Section 125 CrPC, the magistrate has the authority under Section 126(3) CrPC to issue orders deemed just and proper.

Furthermore, the Court noted that Section 127 CrPC provides that the court which issued a maintenance order under Section 125 CrPC, including interim maintenance orders, has the jurisdiction 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.
Consequently, the Court held that orders under Section 125 CrPC, whether final or interim, can be recalled or altered under Section 127 CrPC, making the bar of Section 362 CrPC inapplicable.