V.K. DAMODARAN Vs. GHEDLAMMA AND ORS.

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.G. under Section 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 27th September 1983. Notice was issued to the husband. It was served on him on 4th October 1983. An Advocate filed vakalath on his behalf on 22nd October 1983 and written statement was filed. The husband left India for Iraq on 27th October 1983 and was allegedly in Iraq till 6th January 1985. When the case was called on 21st July 1984 the advocate reported 'no instructions'. Thereupon the learned Magistrate proceeded under the proviso to Section 126(2) of the Code and set the Petitioner ex parte and posted the case to 30th July 1984 for evidence. On that day also the husband was absent. The wife was examined as P.W. 1 and an order was passed directing the husband to pay Rs. 250 per mensem to the wife and 150 per mensem to the child as maintenance from the date of the order i.e. 30th July 1984.

(3.) IT was argued on behalf of the husband before the learned Magistrate that three months period' prescribed in proviso to Section 126(2) of the Code for setting aside the order of maintenance passed ex parte has to be reckoned' not from the date of the order, but from the date of knowledge of the order. The learned Magistrate following the decision of a Division Bench of this Court in Thankamma v. Appukuttan Nairi, 1975 K.L.T. 131 :, L.L.R. 1975 Ker 75, held that the period of limitation starts from the date of the order and not from the date of the knowledge of the order. The learned Magistrate also held that if the case of the husband was that the delay in filing the petition was beyond his control he could have filed a petition under Section 5 of the Limitation Act praying to condone the delay, but since that was not done, C.M.P. 379 of 1985 was liable to be dismissed as time barred. The learned Magistrate also rejected the contention raised on behalf of the husband, that since the requirement of Section 126(2) of the Code to take evidence in the presence of the counter -Petitioner or his counsel had not been complied with the evidence was not binding on the husband. The learned Magistrate pointed out that proviso to Sub -section (2) of Section 126 is in the form of an exception to the section and this permits the Court to take evidence ex parte. The learned Magistrate further held that no reason was made out to condone the delay. In this view of the matter, the learned Magistrate dismissed the petition.