PARMAR CHIMANBHAI GHEMABHAI Vs. PASIBEN

JUDGEMENT

(1.) The material facts giving rise to this revision application by the husband against whom an order of maintenance has been passed may be stated as under

(2.) The petitioner Chimanbhai Ghemabhai was wedded to the first respondent. Pasiben. On 18th August 1975 the wife filed an application No. 36/75 in the court of the learned J. M. F. C. Kapadvanj under sec. 125 of the Code of Criminal Procedure 1973 hereinafter called the Code seeking maintenance from her husband. Summons of that application was served on the husband by registered poet hut he did not enter an appearance and allowed the matter to proceed ex parte. The learned J.M.F.C. proceeded ex parte and by his order dated 31st December 1975 he awarded maintenance to the wife at the rate of Rs. 60.00 per month from the date of the application ie. 18th August. 1975. The wife then took out recovery proceedings on 12th March. 1976 for the amount of maintenance which was in arrears for six months and Rs. 4.00 awarded as costs by the learned Magistrate Notice to show cause was directed against the husband but he did not enter an appearance on the date fixed for the hearing of the application. and hence the learned Magistrate ordered distress warrant to issue against him. Thereupon on 4th June. 1976 the husband filed an application for setting aside the order of maintenance passed by the learned Magistrate an the ground that the service of summons by registered post was not a valid service. The learned Magistrate accepted the contention of the husband and set aside the ex parte order dated 31st December 1975 and directed a fresh inquiry into the matter. In response to the summons served on the husband he entered an appearance through an advocate and obtained time for filing his written statement challenging the averments made in the petition by his wife. It appears that time was granted but the husband did not file his statement and hence on the last occasion extension of time was granted on condition of payment of Rs.25.00 by way of costs. It is common ground that this condition precedent regarding payment of costs was not satisfied by the husband and. therefore the learned trial Magistrate refused to take his written statement on record. Ultimately at the hearing of the application. the wife gave a purshis stating that her evidence recorded on the previous occasion in the same proceedings be treated as evidence in the fresh inquiry as she had nothing further to add. On that day admittedly the husband was absent but his learned advocate was present in court and he did not make any request to the court that he desired to cross examine the wife or lead evidence in his defense. Ultimately on 27th April 1977 the learned trial Magistrate passed a fresh order in favour of the wife awarding maintenance at the rate of Rs. 60.00 per month from the date of the application. After this order was passed the wife made an application on 20th June 1977 for recovery of the amount of maintenance which was in arrears from 18th August 1975 to 20th June 1977 In the said proceedings the learned Magistrate passed an order of attachment of the property of the husband and it is against this order that the present revision application is filed.

(3.) Mr. Parikh the learned advocate for the petitioner husband raised the following two contentions before me at the hearing of this revision application: