Point of Law: Section 123 of Limitation Act, has to be counted from date of decree or where summons or notice was not duly served, when applicant had knowledge of decree - She submits that in application under Section 126 (2) of Code itself husband has admitted receipt of notice to appear in maintenance proceedings but he could not appear on account of illness of his father, and limitation is to be counted from date of ex parte order and not from date of knowledge - Counsel for wife further submits that period prescribed for getting ex parte order set aside in a maintenance case would start from date on which it was passed which in case, but husband filed application for said purpose under Section 126 (2) of Code with delay of more than one and a half year, that too without filing an application for condonation of delay - She submits that counting of limitation by husband from date on which he withdrew revision in the High Court is wholly misconceived and is not permissible under section 123 of Limitation Act.

ORDER :

The Order under challenge in this revision petition is the one which was passed on 30.08.2014 by learned Family Court, Ambikapur, District Sarguja in Misc. Criminal Case No. 04/2014 dismissing the application filed by the applicant/husband under Section 126 (2) of the Code of Criminal Procedure for setting aside the ex parte order dated 17.08.2012 passed by learned Family Court, Ambikapur in Misc. Criminal Case No. 01/2012.

2. There is no dispute that the non-applicant herein namely Smt. Reena Prasad is the legally wedded wife of applicant Sandeep Kumar Prasad. The parties hereinafter would be referred to as the wife and husband, for convenience.

3. The facts leading to the disposal of this revision petition in brief are that having been fed up with the frequent dowry demands, indifferent attitude and the tortuous act of the husband and his family members, the wife moved an application under Section 125 of the Code of Criminal Procedure (for short the “Code”). The wife has pleaded in the application under Section 125 of the Code that being an un-employed woman, it is extremely difficult for her to eke out the livelihood whereas the husband being in the employment of WCL as foreman earns Rs. 40,000/- per month, and therefore, let he be directed to pay a sum of Rs. 10,000/- per month as maintenance.

4. The documents and order-sheets of the case go to show that in spite of service of notice on the husband, he did not turn up to appear in the maintenance proceedings. This non-appearance of the husband made the Family Court proceed ex parte against the husband by order dated 18.07.2012 and then after recording the evidence of the wife allowed the application under Section 125 of the Code in part vide order dated 17.08.2012 granting monthly maintenance of Rs. 5,000/- in her favour. Meanwhile, the husband challenged the ex parte order dated 17.08.2012 by way of Criminal Revision No. 740/2012 filed before the High Court on 07.11.2012 and subsequently withdrew the same on 13.11.2013 with liberty to file an application under Section 126 (2) of the Code. Thereafter, on 06.01.2014 the application under Section 126 (2) of the Code was filed challenging the ex parte order dated 17.08.2012 by taking innumerable grounds of the serious ailment of his father requiring his constant vigil etc which rendered him incapable of appearing in the Court. Learned Family Court vide order under challenge in this revision dated 30.08.2014 however rejected the application filed by the husband under Section 126 (2) of the Code by holding that the same was barred by limitation and that he did not even file an application for condonation of the delay occasioned in filing the application under Section 126 (2) of the Code.

5. Counsel for the applicant submits that the dismissal of the application under Section 126 (2) of the Code is based on wrong calculation of limitation period. As regards non filing of application for condonation of delay, she submits that the husband was under the impression that the limitation is to be counted from the date of order passed by the High Court on 13.11.2013 in Criminal Revision No. 740/2012, and in such a situation if he was under the bona fide wrong assumption, the Family Court should have given him at least one opportunity to file an application for condonation of delay. Yet another submission on behalf of the husband is that while considering the application under Section 126 (2) of the Code, learned Family Court should have adopted a liberal approach than dismissing the application on the ground of limitation.

6. On the other hand, supporting the order impugned counsel appearing for the wife submits that the limitation to get the ex parte decree set aside, as per Section 123 of the Limitation Act, has to be counted from the date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree. She submits that in the application under Section 126 (2) of the Code itself the h