BHUNESHWAR MAHTO Vs. TUSIA DEVI

JUDGEMENT

(1.) This is an application under Section 482 of the Code of Criminal Procedure for setting aside the order dated 20.12.1989 passed in C No.4429/88 (T.R. No.1637/89) through which the opposite party was allowed monthly maintenance allowance @ Rs. 250/- under Section 123 of the Code of Criminal Procedure from the date of the applicant and also order dated 11.10.1991 passed by 5th Addl. Sessions Judge, Giridih in Criminal Revision No. 5/91.

(2.) The fact, in short, giving rise to this application is that opposite party, Tusia Devi, filed an application under Section 125 of the Code of Criminal Procedure for grant of maintenance allowance as against the petitioner claiming him to be her husband. In the court below somehow or the other, the petitioner could not appear and as there was refusal of the notice by the petitioner according to the trial court, so the maintenance proceeding was heard ex parte and vide order dated 20.12.1989 learned Judicial Magistrate awarded Rs. 250/- as monthly maintenance allowance to the opposite party and declaring her to be the wife of the petitioner.

(3.) That subsequently on 4.9.90, the petitioner appeared before the learned Judicial Magistrate for setting aside the ex-parte order as required under Section 126(2) of the Code of Criminal Procedure alleging therein that he got information about the ex parte order on 21.8.90. However, learned Judicial Magistrate rejected the prayer by coming to the conclusion that the order was passed on 20.12.1989 and under Section 126(2), the petition for setting aside the ex-parte order was to be filed within three months from the date of order and as such the petition was not maintainable and, thus, the petition filed by the petitioner was rejected. Against that order, the petitioner preferred a revision, as mentioned above, but the revisional court also rejected the revision by relying on a decision of the Calcutta High Court reported in 1989 Eastern Criminal Cases 505 Amal Guha v. State of West Bengal, Against that order, this application has been preferred.