C. R. PAL, J.

( 1 ) THE petitioner questions the legality of the order dated 25-8-1995 passed by the learned Sub-divisional Judicial Magistrate, Gunupur (in short, 'sdjm') attaching the salary of the present petitioner towards the interim maintenance granted in favour of the opposite party.

( 2 ) THE facts of the case are as follows :the opposite party of this Misc. case filed a petition under S. 125 of the Code of Criminal Procedure, 1973 claiming maintenance at the rate of Rs. 800/- per month from her husband, the present petitioner, alleging that she was tortured and ill-treated by her husband for not fulfilling his demand of dowry and was forced to leave the house of her husband on 16-8-1992 and since then she was living with her uncle. It is also alleged that her husband has, sufficient means and is liable to maintain her as she is unable to maintain herself. The said petition was registered as Misc. case No. 2 of 1993. While the Misc. case was pending for appearance of this petitioner (hereinafter referred to as "the opposite party'), the learned S. D. J. M. passed an order on 23-3-1993 granting interim maintenance of Rs. 400/- per month in favour of the present opposite party (hereinafter referred to as 'the wife') and directed the opposite party to show cause as to why the order shall not be made absolute. Thereafter, the case was adjourned from time to time for appearance of the opposite party, while the case was pending for appearance and stood posted to 15-9-1993 for return of service the learned counsel of the wife appeared before the Court and submitted that although the opposite party who was also an accused in I. C. C. No. 2 of 1993 was attending the Court in that complaint case was avoiding to appear in Misc. Case No. 2 of 1993. So the learned S. D. J. M. directed the advocate of the Opposite party engaged in ICC No. 2 of 1993 to appear before the Court on behalf of the opposite party in the Mise. case. The learned counsel gave an undertaking to appear in the Misc. case on behalf of the opposite party and accordingly issuance of summons to the opposite party in that Misc. case was dispensed with. But again though the case was posted to 15-9-1993, the same was advanced to 25-8-1993 in absence of the opposite party and his counsel and the impugned order was passed attaching the salary of the opposite party. Being aggrieved by the said order, the opposite party has come up with this petition invoking the jurisdiction of this Court under S. 482, Cr. P. C. to set aside the order.

( 3 ) MR. C. A. Rao, learned counsel for the petitioner before us contended that the impugned order passed by the learned S. D. J. M. to attach the salary of the petitioner without giving him any opportunity either before passing the order granting maintenance or before passing the order of attachment of being heard is against the principles of natural justice and is liable to be set aside. The learned counsel for the wife, however, contended that S. 126, Cr. P. C. authorises the Magistrate to pass ex parte order of maintenance and as such, the order passed by the learned S. D. J. M, is sustainable. Section 126 of the Code lays down the procedure which is to be followed in deciding a petition under S. 125, Cr. P. C. The proviso to sub-Sec. (2) of S. 126 stipulates that if the Magistrate is satisfied that the opposite party is wilfully avoiding service, or wilfully neglecting to attend the Court, he may proceed to hear and determine the case ex parte but such an ex parte order made by the Magistrate may be set aside subsequently on good cause being shown within the three months from the date of the order. The essence of the proviso is wilful avoidance of service or wilful negligence to attend the Court and unless the Magistrate is satisfied of such conduct of the opposite party, he would have no jurisdiction to proceed ex parte. But where in a proceeding under S. 125, Cr. P. C. a petition supported with an affidavit is filed claiming inter