N. D. VENKATESH, J.

( 1 ) THIS revision is directed against the order dt. 25-2-1980 of the Additional Munslff and J. M. F. C. , Udupl, dakshina Kannada, in Misc. Case no. 87 of 1978 on his file.

( 2 ) RESPONDENT is the wife of the petitioner. They have three children. Respondent filed an application under S. 125 of the Code of Criminal procedure, 1973 (the Code) against the petitioner in the Court below claming maintenance for herself and on behalf of her three minor children. Allowing the application, by the impugned order, the Court below has directed the petitioner to pay to them maintenance at the rate of Rs 500/- per month.

( 3 ) BESIDES making his submissions on merits, the learned Counsel for the petitioner-husband also submitted that his client did not have adequate opportunity to have his say in the matter in the Court below and, therefore, also the order requires to be set aside.

( 4 ) HAVING had notice of the proceeding the husband had appeared in the Court below, engaged a Counsel and had filed his statement in writing. In support of her case the wife got herself examined (P. W. 1), her father Scshappayya (P. W. 2) and her on Rama Rao (P. W. 3) aged 14 years. But, on his side, the husband did not adduce any evidence. Once or twice he sought for time. On 11 2-1980, to which date the case had been set down for his evidence, neither he nor any of his witnesses were present. The Court treated his case closed and posted the matter for arguments on 15-2-1980 and further on to 19-2-1980. On that day also neither the husband nor his counsel were present. The Court heard the Counsel for the wife and pronounced its order on 25-2-1980 as stated above.

( 5 ) AS rightly submitted by the learned Counsel for the respondent-wiie that even thereafter, the husband, taking recourse to the proviso to sub-sec. (2) of S. 126 of the code, could have applied in that court, within the time stipulated therein, to set aside that order and permit him to adduce his evidence. He has not done so. I am, in the circumstances, of the view that there are no good grounds to set aside the order of the Court below on that score.

( 6 ) NOW, to consider the case on merits : In order to appreciate the arguments advanced on behalf of the husband it may be necessary to note a few facts. (a) The application of the wife under S. 125 of the Code was filed in the Court below on 24-6-1978. She was then about 36 years and her husband was 42 years old. At about that time the respondent, who is a textile Engineer, was employed in a spinning Mill called Kandaswami spinning Mills, Kumarapalyam, salem District, Tamil Nadu. He is well qualified and had his Higher education outside India. Of their three children, the first one is a son aged about 14 years, and two others are daughters, aged about 12 and 9 respectively. Differences appear to have arisen between the husband and the wife some where in 1975. She left him with her children and since then has been living in Kote Village of Udupi Taluk of Karnataka State, with her father. According to her, her husband used to treat her cruelly and some times used to beat her also and therefore she has been compelled to live away from him. Her Case is that she does not have any adequate means of livelihood and her aged father cannot support her. She pleaded that her husband was getting a salary of Rs. 3,cco per month and, therefore, the Court may direct him to pay them, she and her three minor children atleast Rs. 500 per month as maintenance. In his objection statement the husband has denied the allegation that he was not properly treating his wife or had neglected her. He has also denied that he was getting a salary of Rs. 3,000 per month as alleged. It is his case that in spite of his best efforts his wife is refusing to live with him. (b) Prior to her application in the Court below the wife had issued a registered notice and that had been received by the husband some time in the month of April, 1978. In the month of May, 197

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