S.K.Chattopadhyaya, J.

1. Being aggrieved by the order dated 24.9.86 passed in Misc. Case No.5/86 under Sec. 125 of the Code of Criminal Procedure (shortly the Code) directing the petitioner to pay maintenance at the rate of Rs. 250.00 per month to opposite party No.1, the petitioner had moved this Court in the instant application under Sec. 482 of the Code.

2. Before appreciating the points raised on behalf of the petitioner the backdrops of the facts are necessary to be looked into. On 15.4.86 the opposite party No.1, wife of the petitioner filed a petition before the learned Judicial Magistrate under Sec. 125 of the Code praying therein to direct the petitioner to pay Rs. 500.00 per month to her as monthly maintenance allowance. The case of the applicant -opposite party No.1 in her petition, inter alia, was that she was married to the petitioner on 12.5.80 according to the Hindu rites and customs. They were living as husband and wife. Ultimately the wife could know that her husband was having some objectionable relation with some women. The wife never protested to the same in order to maintain peace and harmony in the family of her husband. She, however, was trying to desist her husband from indulging in such unholy affairs being a married man. The petitioner never paid any heed to the said request In May, 1983 opposite party No.1 came to her paternal house and after spending some days there, returned to her husbands place. On her return she was shocked and surprised to find that the petitioner had brought a concubine in his house and was living with her as husband and wife. The petitioner-husband, on seeing his wife, immediately turned her out of his house as a result of which the applicant-wife had no alternative but to reside with her parents at Jamshedpur. The father of the applicant tried his best to send the applicant back to the house of the petitioner but the petitioner on all occasions avoided to take back the applicant to his house. On the ground that the petitioner was not maintaining her and as she was not able to maintain herself having no independent income, the applicant was compelled to file the petitioner for maintenance as aforesaid.

3. Being noticed, the petitioner appeared on 15.7.86 through his lawyer and filed a time petition for filing show cause. The said prayer was allowed. Lower Courts records reveal that on that day a copy of the complaint petition was also received by the learned Advocate of the petitioner. Again on 11.8.86 the petitioner was represented by his Advocate and again a prayer was made for some time in order to enable the petitioner to; file show cause. This prayer was also allowed and the case was fixed on 28.8.86. The order dated 28.8.86 shows that on that day though the applicant filed Hazari, the petitioner neither filed any show cause nor any petition for adjournment. The learned Magistrate suomotu granted time till 8.9.86 to the petitioner for filing show cause. Even on 8.9.86 the petitioner neither filed any show cause nor took any step. The said order reads as follows:

"The applicant files one petition supported by affidavit for interim maintenance. The opposite party takes no step though the opposite party appeared on 11.8.86 and, thereafter, not taking any step. As such, it appears that the opposite party is not interested to proceed with the case. Put up on 23.9.86 for exparte hearing. This petition for interim maintenance is not pressed and dismissed accordingly.

4. On 23.9.85 the opposite party No.1 was examined as A W. 1 and her evidence was closed. Argument was heard on that date and order was reserved and ultimately passed on 24.9.86. This order dated 24.9.86 has been impugned by the petitioner in this case.

5. Mr. Bhowmik appearing on behalf of the petitioner submits that the impugned order is liable to be set aside on the ground that the learned Magistrate while passing the aforesaid order had not followed the procedure as laid down under Sec. 126 of the Code