The main legal point established in the judgment is that the Magistrate must be satisfied that the opposite party is willfully avoiding service or neglecting to attend the Court before proceeding ex parte, and that the person against whom an ex parte order has been passed has the right to file an application to set aside the ex parte order within three months from the date of the order, with the remedy not being confined to filing an application before the Magistrate but also including challenging the order by way of revision before the revisional Court.

BHAT, J.

Petitioner is the husband of the first respondent and father of the second respondent. Respondents herein filed M.C. 37/1983 under Section 125 of the Criminal P.C. (for short the Code) before the Judicial Magistrate of the I Class. Kayamkulam claiming maintenance at the rates of Rs. 300/- and Rs. 200/- per month respectively from the petitioner on the ground that they have no means to maintain themselves and petitioner, though he has means, has neglected to maintain them. Learned Magistrate set the petitioner ex-parte and on the basis of the evidence of the first respondent, examined as P.W. 1, ordered the petitioner to pay maintenance at the rates claimed from 2-7-1983 onwards.

2. Petitioner herein challenged the order by way of R.P. 30/1984 before the Sessions Court, Alleppey. Since the revision petition was filed belatedly, an application was filed for condonation of delay and the same was allowed. However, learned Sessions Judge dismissed the revision petition on the ground that no illegality or impropriety in the order of the learned Magistrate has been made out. This order is challenged in the present Crl.M.C.

3. The learned single Judge before whom this case came up for consideration referred the same to a Division Bench. The reference order reads:

"The question that arises for consideration in this petition, filed under Section 482 of the Cr.P.C. is whether the Trial Magistrate can dispose of a petition under Section 125 of the Code without specifically entering into a finding that the respondent before him is willfully avoiding service of notice or willfully neglecting to attend the court after accepting summons. The consequence of order passed in violation of the said provision also arises for consideration. In Thankamma v. Appukuttan Nair, 195 Ker LT 131, a Division Bench of this Court took the view that it is not the issue of summons, that confers jurisdiction on courts over persons and that unless the order passed by the Magistrate ex-parte is set aside the said decision is valid and binding. That decision specifically overruled the decision in Raghavan Unnithan v. Vijayamma, 1962 Ker LT 526. In Sumathi v. Peter, 1985 Ker LT 1179, one learned single Judge, relying on 1962 Ker LT 526 took the view that the bar of 3 months will not apply in the case of an ex part order passed without complying with the provisions of the proviso. There appears to be an apparent conflict between the said two decisions."

4. The Division Bench before which the case came up for consideration referred the case to a large bench. The reference order states :

"The main question that comes up for consideration is whether a respondent against whom an ex parte order has been passed under the proviso to sub-section (2) of S. 126 of the Code could file only a restoration petition and that too only within a period of three months from the date of the order. A Division Bench decision in Thankamma v. Appukuttan Nair, 1975 Ker LT 131 holds the view that once the ex parte decision is not set aside by a proceeding as contemplated under the proviso on the basis of a petition filed within three months from the date of the order, the ex parte order will stand. The matter came up before us on the basis of reference by the single Judge before whom the matte came. We are of opinion that for a proper decision of the case, it is necessary to reconsider the decision in Thankamma's case 1975 Ker LT 131."

5. We have head learned counsel for the petitioner, learned counsel for respondents 1 and 2 and the learned Public Prosecutor.

6. On the basis of the arguments advanced at the Bar, the following question arise for consideration :

(1) Whether in order to determine maintenance claim under Section 125 of the Code ex parte, a Magistrate should specifically record that he is satisfied that the person against whom an order is proposed to be made is willfully avoiding service or willfully neglecting to attend Court, and, if so, whether reasons for