DAMODARAN Vs. CHELLAMMA

JUDGEMENT

(1.) The counter petitioner against whom an order for payment of maintenance has been passed by the Court of the Judicial 1st Class Magistrate, Chengannur, in M.C. No. 34 of 1983, has preferred the above Crl. M.C. under S.482 of the Code of Criminal Procedure (for short the Code). The parties will be referred to as husband and wife for the sake of convenience.

(2.) The wife filed M. C. No. 34 of 1983 claiming maintenance for herself and her minor son, the 2nd respondent herein on 27-9-1983. Notice was issued to the husband. It was served on him on 4-10-1983. An Advocate filed vakalath on his behalf on 22-10-1983 and written statement was filed. The husband left India for Iraq on 27-10-1983 and was allegedly in Iraq till 6-1-1985. When the case was called on 21-7-1984 the advocate reported 'no instructions.' Thereupon the learned Magistrate proceeded under the proviso to S.126(2) of the Code and set the petitioner ex parte and posted the case to 30-7-1984 for evidence. On that day also the husband was absent. The wife was examined as PW-1 and an order was passed directing the husband to pay Rs. 250/- per mensum to the wife and Rs. 150/- per mensum to the child as maintenance from the date of the order i.e. 30-7-1984.

(3.) On 31-1-1985 the husband filed CMP No. 376 of 1985 praying to set aside the order. He alleged in the affidavit filed in support of the above petition that from 27-10-1983 to 6-1-1985 he was in Iraq and he returned to India only on 10-1-1985, and came to know about the ex parte order of maintenance only on 28-1-1985. His prayer was to set aside the order passed on 21-7-1984 setting him ex parte and also the order dated 31-7-1984 awarding maintenance to the wife and child. The wife filed an objection saying that the petition was time barred.