NALLAN Vs. PALANIAMMAL

JUDGEMENT

(1.) THIS is a criminal revision petition filed under Sec. 401 read with Sec. 397 of Crl. P. C. to set aside the order passed by the learned judicial Magistrate at Musiri in Crl. M. P. No. 2128 of 1997 in M. C. No. 19 of 1996, dated 22. 12. 1997.

(2.) THE respondent herein is the wife of the petitioner herein. THE respondent/wife filed an application under Sec. 125 of Crl. P. C. against the petitioner to grant monthly maintenance at the rate of Rs. 500 and the petitioner/husband has also filed a counter statement before the Judicial magistrate at Musiri in M. C. No. 19 of 1996. After examination of some witnesses on behalf of the respondent/wife, an application was filed under Sec. 125 of Crl. P. C, to amend the maintenance petition by making further pleadings in the main petition by the wife by referring to a deed dated 23. 6. 1996 whereunder both the parties have come to some agreement or arrangement for the division of the properties and that amendment application was taken of file by the learned judicial Magistrate at Musiri in Crl. M. P. No. 2128 of 1997 and the petitioner/husband did not file any counter statement controverting the allegations made in the affidavit of the respondent/wife set out in her amendment petition in Crl. M. P. No. 2128 of 1997.

(3.) SIMILARLYTHERE is no provision in Sec. 125 of Crl. P. C. to set aside the ex parte order of maintenance passed against the husband,but there is a proviso to Sec. 126 of Crl. P. C. to set aside ex parte order. The supreme Court in the decision reported in Mohammed Nairn Sidiqui v. Sulthana kattoon, 1983 S. C. C. (Crl.) 50, laid down that where in a case under Sec. 125, crl. P. C. the matter was decided against the husband ex parte but the husband was not served with notice, then the ex parte order can be set aside.