C SUBRAMANYAM Vs. C SUMATHI

JUDGEMENT

(1.) This is the reference made by a learned single Judge of this Court on 12-2-2002 in respect of order dated 19-7-2001 passed by the learned Judicial First Class Magistrate, Pakala in Crl.M.P.No. 798 of 2001 in M.C. No. 5 of 2000.

(2.) The brief facts that are necessary for answering the present Reference are that the first respondent herein filed a petition seeking to set aside the order dated 4-10-2000 whereunder the maintenance petition filed by her in M.C.No. 5 of 2000 was dismissed for default. She filed the said maintenance petition against her husband. When the case came up for hearing on 4-10-2000, for her non-appearance the court dismissed the maintenance petition for default. She filed a petition seeking restoration of the maintenance petition on the ground of ill health. Her husband contended that no medical certificate in support of the claim of ill health was filed and the default order could not be set aside. After hearing both sides, the learned Magistrate allowed the petition placing reliance on the decision reported in the case of Smt. Prema Jain v. Sudliir Kumar Jain. Against the said order, the husband filed Crl.R.C.No. 984 of 2001 which came up before the learned single Judge.

(3.) The learned Judge, after considering the decisions of various High Courts and for the reasons mentioned in the reference order, is of the view that having regard to the fact that the trend of judicial decisions appears to be that an application for maintenance dismissed for default, can be restored and the Magistrate can entertain an application for setting aside the default order and pass appropriate orders thereon. Since this view is contrary to the view of this Court in Abdul Wahed v. Hafeez Begum and others, the learned Single Judge is of the opinion that the judicial discipline requires that the matter should be referred to the Bench consisting of two Judges to have an authoritative pronouncement in the matter. The Reference is accordingly posted before us.