SANTOSH NAYAK Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS revision is directed against the Order dated 9.6.2003 passed by the J.M.F.C., Purusottampur in Misc. Case No. 4 of 2003 wherein he passed an ex parte award of maintenance of Rs. 500/ - per month to be paid to the wife -petitioner by the opp. party -husband from the date of application. Since the revision petition before this Court has been filed on 3.4.2004 - after 209 days of the statutory period, the petitioner herein has also filed a petition for condonation of delay under Section 5 of the Limitation Act giving rise to Misc.Case No. 444 of 2004. For the sake of convenience and just decision of the case both the Misc case and the revision petition were heard together on consent of the parties and the following Order is passed thereon.

(2.) AS per the averment made in the petition under Section 5 of the Limitation Act in Misc. Case No. 444 of 2004 the revision -petitioner had not received any notice in Misc.Case No. 4 of 2003. So he could not know about filing of the proceeding under Section 125 Cr.P.C. against him. When he received notice in Misc.Case No. 30 of 2003 for enforcement of the exparte award at that time only he could know about the filing of Misc.Case No. 4 of 2003 against him. Soon after receipt of the said notice he entered appearance in Misc.Case No. 30 of 2003 and filed counter therein through his Advocate. On 20.3.2004 he applied for certified copy of the ex parte Order dated 9.6.2003 passed in Misc.Case No. 4 of 2003 and soon after receipt of the same filed the revision petition on 3.4.2004. According to him since the delay in filing the revision was neither intentional nor deliberate the same should be condoned. No objection was filed to the delay condonation petition by the opposite party -wife. As found from the copy of the notice in Misc.Case No. 4 of 2003 one Santosh Nayak endorsed therein showing to have received the notice on 20.3.2003 by putting his signature in Oriya. The third alphabet in the signature, has been written as 'DANTASA'. But in the vakalatnama filed in the criminal revision it has been written as 'MURDHINASA'. Similarly in the written agreement filed on behalf of the revision -petitioner, the third alphabate of the name Santosh has been written as 'MURDHINASA'. Again the signature found in the notice shows that it has been signed by a set hand but in the vakalatnama and the agreement the same name has been written differently. So the plea of the revision -petitioner that he did not receive the notice in the Misc. Case No. 4 of 2003 appears to be genuine. As such, the delay in filing the revision is condoned and the Misc. Case No. 444 of 2004 is allowed. Accordingly the revision is admitted.

(3.) AS per Section 125(4) of the Cr.P.C. no wife shall be entitled to receive any allowance from her husband under Section 125 Cr.P.C. if they live separately by mutual consent. So if the aforesaid document is proved to have been executed on the mutual consent of the parties then the revision -petitioner may not be liable to pay maintenance to the opp. party -wife. Furthermore, the trial Court in the impugned Order has not recorded any finding as to whether the revision -petitioner was wilfully neglecting to attend the Court, which he ought to have observed before passing the exparte order. Under such circumstances in my view, it is a fit case where the case should be remanded back to the Court below for fresh hearing.