ORDER

M. Karpagavinayagam, J. – The petitioner, Damodaran, is the husband. The respondent, Lakshmi, is the wife. On 4-1-1988, the respondent-wife filed a petition for maintenance under section 125 Cr. P.C.

2. In M.C. No 3/88, despite service of the summons, the petitioner-husband did not appear. So, on 26-5-1989, Judicial Magistrate No. II. Erode passed an order awarding maintenance of Rs. 500/- p.m.

3. On 5-8-1991, i.e. after a lapse of two years and three months the petitioner-husband filed a petition in C.M.P. No. 3270 of 1991 to set aside the ex-parte order of maintenance under section 126 (2) Cr. P.C. it is alleged in the petition that the husband-petitioner came to know about the ex parte order dated 26-5-1989 only on 3-5-1991.

4. This application was contested by the respondent-wife stating that the summons was sent to the husband and the same was returned on 8-1-1988 itself as refused and the refusal endorsement is marked as Ex. P. 1 and that the petition was not maintainable, in law and on merits.

5. On hearing both the parties, learned Judicial Magistrate. No. II, Erode, allowed the petition filed by the petitioner husband on the ground that the respondent-wife did not adduce any material to show that the husband knew about the ex parte order even prior to 3-5-1991. Being aggrieved over the order in C.M.P. No. 3270 of 1991 dated 10-3- 1992, the wife filed a revision in Crl. R.P. No. 32 of 1992 on the file of the District Sessions Judge, Erode.

6. The Sessions Court, on hearing both the parties and perused the petition and the counter, allowed the revision holding that the refusal to receive the summons must be considered as service of the summons and therefore, the application filed under section 126 (2) to set aside the ex parte order after two years and three months was not maintainable and therefore the wife-respondent was entitled to maintenance and thereby the ex parte order passed on 26-5-1989 was restored.

7. Challenging that order passed by the Sessions Court the present action has been resorted to by the petitioner husband by filling a revision in this Court.

8. Mr. A.K. Sridharan, learned Counsel for the petitioner and Mr. V.K. Muthusami. Counsel for the respondent argued. I also perused the records and the orders of both the Courts. Section 126 (2) Cr. P.C. provides thus:

"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 present of his pleader, and shall be recorded in the manner prescribed 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 willfully avoiding service, or willfully 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."

So, under this Section, if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is willfully avoiding service the Magistrate may proceed to hear and determine the case ex parte. Ex. P. 1, as referred in the orders of both the Courts below, would make it clear that the summons was returned as refused, as early as 8-1-1988, and then the ex parte order was passed by the Magistrate on 26-5-1989 after recording evidence of P.W. 1. Therefore, the order was passed ex-parte on the ground that the husband willfully avoided service by refusing to receive the same. As such, there is no illegality in the said order.

6. However, the husband the petitioner filed the petition to set aside the ex-parte order under section 126 (2) on 5-8-1991 stating that he came to know about th