PRADIP Vs. MINU

JUDGEMENT

(1.) The petitioner is the husband of the opposite party. He has come to this Court challenging validity of the order passed on 30- 5-81 under S. 126(2), Cr. P.C. by which his application for setting aside the ex parte order of maintenance passed under S. 125 at the behest of his wife, the opposite party was rejected. On 4-4-80 learned Magistrate heard the case ex parte and ordered the husband to pay maintenance at the rate of Rs. 100/- to the wife and Rs. 50/- to the minor daughter from the date of filing of the application. He also directed that the petitioner should pay the arrear in two equal instalments.

(2.) The application for maintenance was filed on 6-4-79 wherein the opposite party claimed that she was the legally married wife of the petitioner and during their wedlock she gave birth to a female child who was at that time one year old. She alleged that the petitioner had driven her out and has neglected to maintain her and the minor daughter. She also stated that the petitioner was drawing a monthly salary of Rs. 450/- and she was entitled to maintenance at the rate of Rs. 150/- for herself and Rs. 50/- for the minor daughter. On 5-6-79 an application was filed on behalf of the second party on which the Court ordered allowing him to file his objection, if any, before 5-7-79. However such objection was not filed until 12-9-79. On 25-9-79 the Court ordered the 1st party (wife) to produce her witnesses on the next date and on 13-11-79 summons were filed by her counsel to obtain orders from the Court for summoning the witnesses which she wished to examine in support of her case. The 2nd party, the petitioner before me, who was not present on earlier dates was absent on that date also and the Court ordered that if the 2nd party remained absent the case will be beard ex parte. On 28-12-79 the 1st party was present in the Court with 4 witnesses but the 2nd party was absent and filed an application praying for adjournment. On this date also the Court reiterated that the case should be heard ex parte but "one last chance" should be given to the 2nd party and warned that on the next date if the 2nd party did not appear the case will be heard ex parte. On 20-2-80 also the 2nd party was absent and the Court gave him "another chance" reiterating once again that on the next date the case would be heard ex parte fixing 4- 4-80 for evidence. On that date another petition was filed for adjournment by the counsel but the Court rejected the same holding that to be "baseless and not at all convincing", and proceeded to hear the case ex parte ''as per previous order". The 1st party was examined and from her deposition as well as from other materials on record learned Magistrate concluded that she was assaulted by the opposite party (2nd party) and driven out from the house and further that he had kept a hill- tribe woman with whom he was having illicit relations. Accordingly the order of maintenance as aforesaid was passed.

(3.) On 14-5-80 the petitioner filed an application under S. 126(2), Cr. P.C. for setting aside the ex parte order passed on 4-4-80. During the pendency of the said application the wife filed on 2-9-80 an application under S. 125(3) Cr. P.C. complaining that the petitioner had, without sufficient cause. failed to comply with the order of maintenance and prayed for necessary orders to be passed as contemplated in law. Both petitions were heard together and disposed of by the impugned order passed on 30-5-81. Learned Magistrate held that he was not satisfied that "good cause" had been shown for setting aside the ex parte order. He held that the ex parte order was passed in the presence of the counsel of the petitioner and further that when the case was taken up for ex parte hearing the Court was satisfied that the adjournment prayed on that date was validly refused. Accordingly he rejected the petitioner's application but at the same time he allowed the wife's application under S, 125(3) and issued warrant for levying the amount due. Both parts of this order are challenged before this Court.