Neutral Citation No. - 2025:AHC:114892 Court No. - 74 Case :- APPLICATION U/S 528 BNSS No. - 22888 of 2025 Applicant :- Noorul Aslam Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Dinesh Kumar Yadav,Rajeev Kumar Counsel for Opposite Party :- G.A. Hon'ble Sanjay Kumar Pachori,J. 1. Shri Dinesh Kumar Yadav, learned counsel for the applicant and Shri Alok Mishra, learned A.G.A. for the State are present. 2. The present application under Section 528 of Bhartiya Nagrik Suraksha Sanhita, 2023 has been filed by the applicant to quash the order dated 10.12.2024 passed by Principal Judge, Family Court, Maharajganj in Maintenance Case No. 753 of 2022, whereby an application to set aside the order dated 12.12.2023, by which the case is proceeded ex-parte against the applicant, has been dismissed. 3. Learned counsel for the applicant submits that the impugned order has been passed without considering the facts, circumstances and position of law and without any reason and after observing that the application under Section 126(2), Cr.P.C. is not maintainable. It is further submitted that the applicant came to know about the maintenance case filed by the opposite party No. 2, then he filed an application under Section 126(2), Cr.P.C. on 21.10.2024 for recalling the order dated 12.12.2023, passed by Principal Judge, Family Court by which the proceedings of maintenance case has been proceeded ex-parte against the applicant. 4. It is further submitted that impugned order has been passed after ignoring the statutory provision of Section 126(2), Cr.P.C. observing that the application under Section 126(2), Cr.P.C. is not maintainable. It is further submitted that the order impugned is illegal, which is gross abuse of the process of law and deserves to be quashed. 2 5. All the facts are on record. The only grievance is that as to whether any application filed to recall the order, by which proceedings on maintenance case arising out of an application under Section 125, Cr.P.C. has been proceeded ex-parte, is maintainable under the proviso to Section 126(2), Cr.P.C.? This is a legal question and the opportunity to hear other party is dispensed with due to this reason. 6. It is settled position of law that the proceedings under Section 125, Cr.P.C. is quasi civil and quasi criminal. 7. Section 126 of Cr.P.C. provides the procedure to hear an application made within 3 months from the date to proceed ex-parte after satisfying for good cause shown on terms as to payment of cost. Section 126 of the Cr.P.C. is reproduced hereinbelow:- " 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 (c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child. (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 order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the 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." 8. There is no other matter for consideration before this Court at this stage except the maintainability of application under Section 126, Cr.P.C. There is grievance with regard to order passed on 10.12.2024 by the Principal Judge, Family Court, which is not sustainable in law. 3 9. In view of the above facts and circumstances, order dated 10.12.2024 is set aside and the court concerned is directed to decide the application, which has been filed by the applicant, as per the Proviso to Section 126(2), Cr.P.C. as afresh. 10. The application is disposed of accordingly. Order Date :- 16.7.2025 T. Sinha Digitally signed by :- TRIPTI SINHA High Court of Judicature at Allahabad