S. Vimala, J.

"We are guilty of many errors and many faults, but our worst crime is abandoning the children, neglecting the fountain of life. Many of the things we need can wait. The child cannot. Right now is the time his bones are being formed, his blood is being made, and his senses are being developed. To him we cannot answer 'Tomorrow,' his name is today." - Gabriela Mistral

1. If instant justice is the need of the child, whether in an application for interim maintenance, the Court should pass ad-interim ex-parte order of interim maintenance under proviso to Section 125(1) Cr.P.C. is the issue canvassed in this revision petition. Aggrieved over the order of interim maintenance passed by the learned Judicial Magistrate, Nilakottai, directing the revision petitioner to pay a sum of Rs. 2,500/- each to R1 and R2, who are the wife and the minor daughter of the revision petitioner respectively, this revision petition has been filed.

2. The respondents herein have filed an application for maintenance in M.C. No. 7 of 2015 before the learned Judicial Magistrate, Nilakottai, Dindigul District. In M.C. No. 7 of 2015, an interlocutory application has been filed in Cr. M.P. No. 6377 of 2015 by the wife, seeking interim maintenance, pending disposal of the main application.

3. The learned Judicial Magistrate has taken the sworn statement of the 1st respondent herein and after perusing the records, has directed the revision petitioner to pay a sum of Rs. 2,500/- to each of R1 and R2. Immediately after passing of the order of interim maintenance, notice has been ordered to the respondent/revision petitioner herein, returnable by 01.07.2015.

3.1. Similarly, in M.C. No. 7 of 2015, notice has been ordered. Again fresh notice has been ordered on 01.07.2015 for hearing on 22.07.2015. Copies have been furnished to the revision petitioner on that day and the order of interim maintenance has been communicated to the husband. On 05.08.2015, the revision petitioner filed an application in Cr. M.P. No. 8385 of 2015 in Cr. M.P. No. 6377 of 2015 under Section 126 Cr.P.C., seeking postponement of the order.

3.2. The relief sought for in this M.P. should have been more appropriately worded. Either the husband should have asked for setting aside of the order or modification of the order, instead has asked the relief of postponement of the order. However, this Court has construed the prayer as the one for cancellation of the order of maintenance.

4. In the petition, the revision petitioner has stated that he is a businessman deriving meagre income and that as he has no intention to desert either his wife or the child and hence the order of interim maintenance ought not to have been passed without notice to him.

5. The Court, after considering the application in Cr. M.P. No. 8385 of 2015 in Cr. M.P. No. 6377 of 2015 (filed under Section 126 of Cr.P.C.), seeking to set aside the order of interim maintenance, dismissed the same. Relying upon the decisions reported in,

i) 1993 Crl. Law Journal 2898 (Calcutta High Court);

ii) 1996 Crl. Law Journal 1896 (Chennai);

iii) 2005 Crl. Law Journal 1455 (Gujarat High Court), the Court held that there is nothing wrong in Court passing an ex-parte order of interim maintenance. Whether this finding is sustainable is the main issue canvassed in this revision petition.

5.1. It will be appropriate to refer to the provisions of Section 125 Cr.P.C. to appreciate the contention raised by the revision petitioner:

"Order for maintenance of wives, children, and parents.-(1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father and mother, unable to maintain