OSMAN GANI Vs. TAHURANNESSA BEGUM

JUDGEMENT

(1.) THE husband in a proceeding under Section 488 Cr. P. C. obtained this Rule against the order of the learned Magistrate rejecting his prayer made under the proviso to Section 488(6) of the Code for setting aside an ex parte order for payment of a maintenance allowance of Rs. 50/ - per month to his wife.

(2.) THE materials on record show that the petitioner was served with notice of his wife's application under Section 488 Cr. P. C. and that he also appeared in court and filed his written statement, but thereafter did not appear. The proceeding ended in an ex parte order directing payment of maintenance allowance as stated above. Six months thereafter the petitioner appeared in court and applied under the proviso to Sec, 488(6) for setting aside the ex parte order. The learned Magistrate refused to entertain the prayer on the ground of limitation.

(3.) SECTION 488(6) of the Code requires that evidence in connection with a proceeding under the section should be taken in presence of the other party or his pleader. The proviso appended to the clause says, however, that if the Magistrate is satisfied that the other party is wilfully avoiding service or wilfully neglecting to attend the court he may proceed to hear and determine the case ex parte. It is an order passed ex parte under the above circumstances which is liable to be set aside for good cause shown on an application made within three months from the date thereof. The question is whether the second part of the proviso which refers to setting aside of the ex parte order is at all attracted to the facts of the present case.