JUDGMENT

J.P. DAS, J. - This is an application under Section 19 of the Family Court Act read with Section 401 of the Code of Criminal Procedure (Cr.P.C., in short) assailing the order dated 27.11.2017 passed by the learned Judge, Family Court, Nayagarh in the Criminal Misc. Case No. 281 of 2017 rejecting an application filed by the present petitioner to set-aside the ex-parte order of maintenance passed against the petitioner on 29.11.2003 in C.M.C. No. 62 of 2003 by the learned S.D.J.M., Nayagarh.

2. The application to set-aside the ex-parte order was filed under Section 126(2) of the Cr.P.C. along with an application under Section 5 of the Limitation Act to condone the delay in filing such application. The learned trial Court has rejected the application solely on the ground that the petitioner was set ex-parte on his refusal to receive the notice and the application to set-aside the ex-parte order was filed after about 13 years 11 months of the ex-parte order, while Section 126(2) of the Cr.P.C. provides that such an application should be made within three months from the date of order.

3. It is submitted on behalf of the petitioner that the opposite party-wife filed the application under Section 125, Cr.P.C. before the learned S.D.J.M., Nayagarh vide C.M.C. No. 62 of 2003. In the said proceeding, notice was issued to the present petitioner and it was held sufficient since it was allegedly refused by him and notice was served by way of affixture by the concerned Process Server obtaining signatures of two witnesses. Simply relying on that the present petitioner as opposite party was set ex-parte and taking up ex-parte hearing the learned S.D.J.M. passed the ex-parte order on 29.11.2003 directing the petitioner to pay monthly maintenance of Rs. 1500/-.

4. It was submitted that the said service report was manufactured at the behest of the petitioner-wife since one of the witnesses namely, Manguli Parida, who signed on the service report, filed an affidavit before the trial Court, presently learned Judge, Family Court, Nayagarh in course of hearing of the application of the petitioner to set-aside the ex-parte order that he has never signed on any such document and also submitted that there was no such person as Narendra Parida in their village who was shown to have signed as the other witness. It was further submitted that the opposite party after obtaining ex-parte order of maintenance, did not execute the same and only in the year 2017, he filed Crl. M.P. No. 65 of 2017 for realization of arrear maintenance of Rs. 18,000/-. It was submitted that only after the petitioner was arrested on the strength of N.B.W. issued by the Court in the said proceeding, he could know about the ex-parte order passed against him and immediately thereafter, she filed an application under Section 126(2) Cr.P.C. to set-aside the same along with an application to condone the delay.

5. It was also submitted by learned counsel for the petitioner that the marriage between the petitioner and the opposite party is not disputed but both the parties on mutual agreement had separated from each other since 1998 and one document was executed in that respect severing the marital relationship between the petitioner and the opposite party with certain terms and conditions. The opposite was returned with all her articles besides some cash and both the parties agreed not to initiate any proceeding against each other relating to such marital relationship. It was submitted that thereafter the petitioner had no occasion to suspect even that a proceeding under Section 125, Cr.P.C. was initiated against him much less passing of an ex-parte order. It was also submitted that not only the service report against the petitioner was manufactured at the behest of the opposite party to set him ex-parte but also the relevant document serving the marital relationship between the parties was kept out of consideration of the Court by concealing the same the opposite party.

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