MUTHUSAMY Vs. KALAARASI

JUDGEMENT

(1.) The respondent in M.C. No. 190 of 1988 on the file of the sub-divisional Judicial Magistrate, Villupurarn, is the petitioner. The first respondent is his wife. The second respondent is his minor daughter aged about 21/2 years. The first respondent on 5-5-1988 filed a petition under Section 125, Criminal Procedure Code, before the Trial Magistrate, claiming maintenance for herself as the wife of the petitioner and for her minor daughter as born out of the wedlock between herself and the petitioner. The petition was taken on file by the trial Magistrate and notice was ordered to the petitioner who was the respondent in the said proceeding. On 25-5-1988, the petitioner appeared before the Trial Court, when he was furnished a copy of the maintenance petition. The case was posted for filing of the counter by the petitioner on 27-5.1988. On 27-5-1988, the first respondent was absent and so a communication was sent to her about the next date of hearing fixed for 10-6-1988. On 10-6-1988, the petitioner as well as the first respondent was present. The copy of the counter filed by the petitioner was furnished to the first respondent. The proceedings, were adjourned to 4-7-1988 for examination of witness. On 4-7-1988, the enquiry could not be conducted since the staff of the court were on strike. The proceedings were adjourned to 18-8-1988. Both the petitioner and the first respondent were present in the court. However, the enquiry was adjourned to 20-9-1988 for examination of witnesses. On 20-9-1988 both the petitioner and the first respondent were present. Still the matter was adjourned to 2 1-10-1988 for enquiry. It appears that for some time there was no Presiding Officer in the court of the Sub - divisional Judicial Magistrate, Villupuram and the District Munsif was disposing of cases in the afternoons. On 21st October, 1988, the first respondent was present in the court, but neither the petitioner nor his counsel were present in the court. On the very same day, the trial Magistrate examined P.W.1 (the first respondent) and through her had Exs. P1 to P5 marked. The photograph of the petitioner and the first respondent was also produced as M.O.I. On the same day. The trial Magistrate passed an order, the operative portion of which is in the penultimate paragraph. The penultimate paragraph translated in English will read as follows :- On the date fixed for enquiry neither the peiltioner (respondent in the Lower Court) not his counsel were present. Accepting the deposition of the first respondent (Petitioner in the Lower Court) and in view of the absence. of he petitioner (respondent in the Lower Court) the petition of the wife is allowed. All the other paragraphs in the judgment deal with the deposition of P.W.1. There is practically no discussion in the order of the trial Magistrate which has not even considered the question of the means of the petitioner as to the quantum of maintenance that has to be awarded.

(2.) The learned Counsel for the petitioner contends that in terms of proviso to Section 126(2) of the Criminal Procedure Code the Magistrate will have to be satisfied that the person against whom an order for payment of maintenance was proposed to be made was wilfully avoiding service or wilfully neglecting to attend court before he proceeds to hear and determine the case exparte. The first part of the proviso may not arise since the petitioner has already been served and there was no wilful avoidance. There is no finding by the Trial Magistrate that the petitioner was wilfully neglecting to attend the court. It cannot also be so found since the diary extract shows that the petitioner was present on all the hearing dates from 25-5-1988 to 20-9-1988, both the days inclusive. Only on one day on 21-10-1988 he and his counsel were absent. The absence for one day cannot be stated as wilful neglect to attend court, since the past conduct of the petitioner would prevent such a finding being made. Further, the order of the Trial Magistrate does not appear to fit in with the contemplation of Section 354(6), Criminal Procedure Code. The learned Counsel for the respondents contends that instead of filing a revision in this court, the petitioner could have as well filed a Petition in the Trial Court itself to have the ex parte order set aside. It is quite so. Such an application could have been filed. The law permits three months time for the petitioner to have the ex parte order set aside by the trial Magistrate. However, the revision has been filed in this Court within such period of limitation of three months and obviously this revision has not been filed to evade the limitation bar contained in Section 126(2), Criminal Procedure Code. It has not been brought to may notice that a revision is barred against an ex parte order.

(3.) The order of the Trial Magistrate awarding maintenance to the respondents is set aside. The Trial Magistrate will continue the enquiry in M.C. 190 of 1988 and dispose it of in accordance with law as early as possible. The grievance of the learned Counsel for the respondents is that there is already a delay in the disposal of the petition and therefore at least a part of the amount of maintenance ordered must be directed to be paid. This course is not possible since the very order of the Magistrate has been set aside. There could be no impediment for the respondents to get maintenance awarded to them, in the event of their succeeding in the lower Court, from the date of the petition itself. When such a course is open, there cannot be any failure of justice. With these observations, this revision is allowed. Revision allowed.