SUMATHI Vs. N J PETER

JUDGEMENT

(1.) The revision arises out of a proceeding under S.125 of the Code of Criminal Procedure, here-in-after called 'the Code'. First petitioner is the mother and 2nd petitioner is the minor child. They filed MC 27 of 1980 for maintenance against the respondent. It was decided ex parte by the Addl. Judicial First class Magistrate-I, Ernakulam. Coming to know of the decision, by getting notice for execution, the respondent filed Crl RP 49 of 1982 before the Sessions Court, Ernakulam with a petition to condone the delay, even though such a delay petition was not necessary. Delay was condoned by consent of parties on payment of cost. Thereafter, the revision petition was heard and it was allowed. The case was remanded to the Magistrate. The present revision is against that order. The only contention raised by the revision petitioners is that the Sessions Judge had no power to entertain and dispose of the revision.

(2.) Normally, an order for maintenance under S.125 of the Code is liable to be revised by the Sessions Judge. The ouster of jurisdiction to entertain a revision is claimed only on the basis of the proviso to S.126(2) of the Code. S.126(2) and the proviso read thus:

(3.) In order to proceed ex parte as authorised by the proviso, there must be the satisfaction of the Magistrate regarding the existence of either of the conditions specified therein. He must be satisfied either that the person is wilfully avoiding the service or that he is wilfully neglecting to attend the court. It implies that a notice of the application should issue to the person from whom maintenance is claimed. The notice or summons issued must be served in accordance with the provisions of the Code. S.62 of the Code provides the procedure. The summons must be signed by the Presiding Officer as provided in S 61 and it must be served as provided in S 62. When the person cannot be found even after the exercise of diligence, there is the provisions under S.64. Service by affixture is provided under S.65, only when service under S.62, 63 and 64 becomes impossible. Regarding a person in service, there is the provision in S.66 to have the summons issued through the Head of the Office in which he is employed. In other cases, service of summons to persons outside the jurisdiction of the Magistrate should ordinarily be through a Magistrate having jurisdiction over the area S.68 provides that when summons is issued to be served outside the jurisdiction of the Magistrate, the Magistrate himself must have satisfaction of the service as provided therein. Where summons is not duly served or where there is no proof of refusal of summons as provided earlier, an order ex parte will be illegal. If there is wilful avoidance of service, that is a matter in which the Magistrate can have proof in that case itself as per the provisions earlier stated. Satisfaction of wilful neglect to attend the court can arise only if there is service or at least knowledge on the part of the counter petitioner regarding the proceedings coupled with knowledge of the process issued in his favour. Such satisfactions are conditions precedent for authorising the Magistrate to proceed ex parte. Even though the Magistrate may not be bound to pass an order regarding his satisfaction of the conditions mentioned in the proviso, it is necessary that such satisfaction supported by the reasons must be evident from the ex parte order that he passes.