G GNANAIAHPANDIYAN Vs. PAZHANIAMMAL

JUDGEMENT

(1.) This revision is directed against the order dated 13-2-1995, dismissing the petition in Crl. M. P. No. 3124 of 1994, filed by the petitioner/husband to set aside the ex parte order of maintenance passed in M. C. No. 7 of 1993, dated 23-11-1993, by the Judicial Magistrate No. 3, Srivilliputhur.

(2.) The facts of this case involving a chequered history are quite agonizing.(i) The petitioner Gnanaiahpandiyan, a Police Constable, attached to Soonamedu Police Station, Chengai M.G.R. District, is the husband. The respondent Pazhaniammal of Cheithur village, Kamarajar District, is the unfortunate wife.(ii) The petitioner and the respondent got married on 24-1-1980 in a temple Arulmigu Thirukanneswarar Alayam, at Seithur, under Hindu rites in the presence of the elders of both the families. Some months later, the wife came to know that the petitioner/husband had illegal contact with several women. Ultimately, the wife was driven out from the matrimonial home, after subjecting her to cruelty. She came to the parent's home, eight years after the marriage. On coming to know that the petitioner herein married one Gowri, as second wife, the parents of the respondent herein reported to the panchayat. The panchayatars convened a meeting and decided that either the respondent must be taken back by the petitioner or else he must at least pay the monthly maintenance amount to her. The husband, however, challenged stating that he would not be bound by the words of the panchayatars, as he is working as a Police Constable.(iii) Since the petitioner neglected the wife and refused to maintain her, the respondent/wife filed a petition on 5-7-1993, claiming maintenance at Rs. 500/- p.m., from her husband, in M. C. No. 7 of 1993, before the learned Judicial Magistrate No. 3, Srivilliputhur, stating that her husband was earning Rs. 3,000/- per month.(iv) On 14-7-1993, the learned Judicial Magistrate, took the case on file and issued notice to the petitioner, the Police Constable attached to Soonammedu police station, Chengai M.G.R. Dist. Since, on 13-8-1993, the next hearing, the petitioner/husband was not present, the learned Judicial Magistrate issued fresh notice, asking the petitioner/husband to appear before the Court on 10-9-1993. Notice was served upon him through the Sub-Inspector of Police of the said station in time. On 6-9-1993, the petitioner/husband sent a letter by registered post to the Court, informing his inability to attend the Court on 10-9-1993, since he was advised by the Doctor, not to travel. He further requested in the said letter, to transfer the case from the Court at Srivilliputhur to the Court at Kancheepuram, enabling him to appear before the said Court, nearer to his residence. The learned Judicial Magistrate on receiving the said letter, on 10-9-1993, issued a fresh notice again and posted the matter on 8-10-1993. There was no response from the petitioner/husband even on 8-10-1993, and again a fresh notice was ordered by posting the matter to 12-11-1993, and thereafter to 19-11-1993. Ultimately, on 19-11-1993, since the petitioner/husband was not present, he was set ex parte, and the respondent/wife was examined as P.W. 1, and through her Exs. P. 1 to P 3 were marked. The case was posted for orders on 23-11-1993. The learned Judicial Magistrate, on 23-11-1993, passed an order, awarding maintenance of Rs. 400/- per month, with effect from the date of presentation of the petition, viz. 14-7-1993.(v) On 15-12-1993, the respondent/wife filed an execution petition under Section 128, Cr. P.C., in Crl. M. P. No. 4094 of 1992, wherein notice was ordered by the Magistrate to the petitioner/husband asking him to appear on 7-1-1994. On that date also, the petitioner/husband did not appear. Again fresh notice was ordered, by posting the case on 4-2-1994. This time, the Magistrate, on the non-appearance of the petitioner/husband issued bailable warrant and posted the matter to 11-3-1994. On 11-3-1994, fresh warrant was issued, and the matter was posted on 15-4-1994. On 15-4-1994, the warrants were returned. So, the matter was posted on 6-5-1994 and again on 10-6-1994. On 10-6-1994, fresh notice was sent, asking the petitioner to appear on 8-7-1994. From 8-7-1994, the matter was adjourned to 22-7-1994. Since the respondent was not present on 22-7-1994, the order of attachment of salary through the Superintendent of police was passed against the petitioner/husband. The matter was adjourned to 16-9-1994 and then to 7-10-1994. In the mean time, on 13-9-1994, the Court received a cheque sent by the Superintendent of Police, by attaching the salary of the petitioner/husband to the extent of Rs. 400/- per month.(vi) On 7-10-1994, the petitioner/husband appeared before the learned Magistrate, and filed an application in Crl. M.P. No. 3124 of 1994, with a prayer to set aside the ex parte order of maintenance dated 23-11-1993, after condoning the delay. He further prayed in the same application, to stay the operation of the order of attachment of salary, pending disposal of the said criminal miscellaneous petition. On this petition, enquiry was conducted. Both parties were heard. In the enquiry, the petitioner examined himself as P.W. 1, and marked Ex. P. 1, the summon issued by the Court to him, Ex. P. 2, the copy of registered letter dated 6-9-1993 sent by him to the Court, Ex. P3-postal receipt Ex. P4-acknowledgment of the Magistrate dated 10-9-1993, Ex. P5-out-patient card showing that he was admitted in the Chengalpattu Government Hospital, for his paralytic attack on 25-9-92, Ex. P. 6 copy of notice received by him in the execution petition in Crl. M. P. No. 4094 of 1993, on 12-1-1994, Ex. P. 7-copy of letter dated 30-1-1994, send by him to the Court expressing his inability to appear before the Court, Ex. P8-postal receipt for Ex. P7, Ex. P9-postal acknowledgment of the Magistrate and Ex. P. 10-the Doctor's certificate. In his evidence, he admitted, that he received the notices, both the M. C. No. 7 of 1993, before the ex parte order of maintenance and in Crl. M.P. No. 4094 of 1994, the execution petition, after the ex parte order. But, he contended that he came to know of the ex parte order, only on 30-8-1994, when his salary was attached.(vii) However, the learned Judicial Magistrate dismissed the said petition, holding that there was no good cause shown for his non-appearance, on the date on which he was set ex parte, and that the fact that the petitioner/husband sent two registered letters one on 6-9-1993, before passing the ex parte order and another on 30-1-1994, after passing of the ex parte order, would show, that he knows the progress of the case, at each and every stage, and his contention that he came to know about the ex parte order only on 30-8-1994, after his salary was attached could not be true. This order of dismissal refusing to set aside the ex parte order of maintenance, in Crl. M.P. No. 3124 of 1994, dated 13-2-1995, is challenged in this revision.

(3.) The interesting point that has been raised in this revision by the learned counsel for the petitioner is this :-"