ABDUL WAHED Vs. HAFEEZA BEGUM

JUDGEMENT

(1.) This revision petition arising under S. 125 of the Criminal P.C. is at the instance of the husband. The wife filed an application for maintenance to her as well as for her daughter and though it was filed in 1980 it was posted to 15-12-1983 for directing the issue of notice to the parties after remand by the Sessions Court. On 15-12-1983 both the petitioners and respondent were called absent and the matter was posted to 31-12-1983 and again both the petitioners and the respondent were called absent. Thereupon the trial court dismissed the petition for default. The wife and daughter filed a petition to set aside the default order and this application was dismissed on 31-1-1984. On revision petition the learned Sessions Judge held that the Magistrate has no power to dismiss the application for default and as such the order is illegal and the order is liable to be set aside by the sessions court exercising revisional jurisdiction. It is further held that assuming the Magistrate has power to dismiss the application for default, the proceedings for maintenance are in the nature of Civil proceedings and the court had power to set aside the order of dismissal for default. In this view the sessions court set aside the order of the trial court. Aggrieved by the said order the husband filed the revision petition.

(2.) The learned counsel for the petitioner contends that the petition for setting aside the default order is not maintainable and the sessions court erred in setting aside the order of default.

(3.) Chapter IX Cr.P.C. is a special code pertaining to maintenance of wives, children and parents in the Cr.P.C. Chap IX comprises three Sections namely Ss. 125, 126 and 127 and it is self-contained code designed to further speedy remedy for the grant of maintenance to wives, children and parents. Section 125 enumerates the conditions under which the relief of maintenance can be granted and S. 126 is concerned with procedural aspect and S. 127 relates to alteration in the quantum of maintenance to suit the changed conditions and circumstances. As this revision is concerned with the procedural aspect it is necessary, to dilate upon S. 126 which is as follows :