( 1 ) THE order of the Family Court rejecting the petition filed by the petitioner under Sec. 126 (2), Cr. P. C. has been challenged in this petition. The respondent filed a petition under Section 125, Cr. P. C. on 27-7-1992 seeking maintenance of Rs. 500/ -. Objections were filed and the advocate for the petitioner also appeared but on 9-2-1994, the Presiding Officer was on leave. It is stated that thereafter the advocate has not appeared and ultimately the order under Sec. 25 was passed on 3-9-1994 awarding maintenance of Rs. 400/- per month. Petition under Sec. 126 (2) was moved on 29-9-1994. The learned Judge was of the opinion that the provisions of Sec. 126 (2), Cr. P. C. are applicable to set aside the ex parte order. But there is no provision for setting aside theex parte judgment. In other words, the application under Sec. 126 (2), Cr. P. C. could have been moved when the main matter under Sec. 125, Cr. P. C. was pending.

( 2 ) ARGUMENTS of both the learned Counsel for the parties heard. Section 125 authorises the Magistrate to pass an order in the circumstances given therein. Section 126 prescribes the procedure for a proceeding under Sec. 125. The relevant provision of Sec. 126 (2) is in dispute reads thus :-"126. Procedure- (1) xx xx xx (2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner for summons cases:provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper. "from the reading of the above proviso it is evident that the Magistrate has the power to proceed ex parte in the circumstances.- (a) Where the defendant is lawfully evading service and (b) wilfully neglecting to attend the Court. In both the situations the Magistrate may proceed to hear and determine the case ex parte, which has reference to the application moved u/s. 125. The petitioner in the present case has not avoided the service as after service of the summons he has filed objections and appeared before the Court at the initial stage. The other condition of giving jurisdiction to the Magistrate to determine the case ex parte is where the respondent wilfully neglected to attend the Court. Wilfully neglecting to attend the Court implies that it is only after service of the notice and still the respondent may remain absent. There could have been an order directing to proceed ex parte or there could be a final disposal of the petition u/s. 125 itself. The proviso provides that any order so made may be set aside for good cause shown on an application made within 3 months from the date thereof. If the applicant is able to show the good cause then the ex parte order so made can be set aside.

( 3 ) A contention is raised that against the final order which is passed u/s. 125 which amounts to judgment against which the remedy of revision could be availed. But if it is for placing the other side ex parte by passing an order which could be challenged under the provision to Sec. 126 (2), Cr. P. C. The interpretation of the learned Counsel is not correct. Because when the proviso gives the power to pass the order ex parte which could be either by passing an order u/s. 125 or placing the other side ex parte and proceeding u/s. 125, Cr. P. C. contemplates passing of an order and therefore, it cannot be said that the order passed u/s. 125 is not an order or that the appli