SUNIL KUMAR PHUKAN Vs. MT PRATIMA BURAGOHAIN

JUDGEMENT

(1.) THIS application under Section 439, Criminal Procedure Code filed by the second party (husband) is directed against the order dated 15.5.1968 passed by the Magistrate granting maintenance to the first party (wife) and her minor child under Section 488 of the Code of Criminal Procedure.

(2.) THE facts of the case, in brief, are as follows: The first party made an application claiming maintenance of Rs. 100/ - for herself and Rs. 50/ - for her minor daughter from the second party. As the notice had not been returned, a fresh notice was issued. As the second notice was also not returned after service, the Magistrate ordered issue of notice by registered post through the Superintendent of Police, Nowgong under whom the second party was serving as Sub Inspector of Police. On 11.4.1968 the Magistrate found that the notice issued by registered post had been duly served and the postal acknowledgment receipt had been received, but as the second party did not appear, he fixed the case for hearing ex parte on 15.5.1968 on which date the first party examined two witnesses and the Magistrate passed an order directing the second party to pay a monthly maintenance of Rs. 150/ - per month to the first party and her daughter.

(3.) ON 19.12.1969 the second party appeared and filed an application for setting aside the ex parte order passed by the Magistrate on 15.5.1968. The learned Magistrate by his order dated 23.1.1970 rejected the application as barred by limitation under sub -section (6) of Section 488 the Code of Criminal Procedure.