An ex parte order of maintenance can be set aside for good cause shown, and the court can grant interim maintenance to the wife while a proceeding under Section 125 of the Code is pending.

JUDGMENT :

K.P. Mohapatra, J. - This criminal revision is directed against an order passed by the learned Subdivisional judicial Magistrate, Cuttack, setting aside an ex parts order allowing maintenance to the petitioner.

2. The facts, in brief, may be narrated. The petitioner made an application on 29-5 1982 u/s 125 of the Code of Criminal Procedure ('Code' for short) claiming maintenance from the opposite party as his legally married wife, the marriage having taken place according to Hindu rites on 16-1-1974. She averred that she was driven out from her matrimonial home on 18-1-1932. The opposite party denied marriage as well as his liability to pay maintenance to her. Despite sufficient service of notice the opposite party did not appear and by order dated 18-2-1982, he was set ex parte. On 10-11-1982, an ex parte order of maintenance at the rate of Rs. 150/-per month was passed. Later, the opposite party made an application u/s 126(2) of the Code which was allowed and the ex parte order of maintenance was set aside. In due course, the case was posted for hearing to 20-12-1984. It is necessary to quote the order passed on the aforesaid date.

"The petitioner and the O. P. files hazira. The petitioner is examined as P. W. 1, but none appears for X X Examination of the witnesses. At this stage, in the midst of the examination the O. P. files a petition for time without late fee and without the signature of the Advocate. The time petition is rejected. The O. P. is set ex parte and the petitioner does not want to adduce any evidence. The evidence is closed. Put up to 4-1-1985 for ex parte order"

On 4-1-1985, a second ex parte order for maintenance at the rate of Rs.150/- per month was passed. The petitioner again made an application u/s 126(2) of the Code which was allowed by the Impugned order.

3. The learned counsel appearing for the petitioner urged that the order of maintenance was not ex parte and so the provision of Section 126(2) of the Code is not applicable. Accordingly, the learned Court below committed an error of law in setting aside the ex parte order of maintenance purporting to act under the aforesaid provision. The learned counsel for one opposite party on the other hand contended that the impugned order was pure and simple ex parte which was rightly set aside on good cause being shown. Therefore, interference in revision is unwarranted.

4. The provision to Section 126(2) which is relevant is quoted for easy reference :

"Provided that it the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and arty order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party, as - the Magistrate may think just and proper."

In Bharat @ Kathia Mallik Vs. Niasi Mallik, it was held that the proviso to Sub-see. 2 of Section 126 of the Code authorises the Magistrate to proceed to hear and determine the case ex parte, if he is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service or wilfully neglecting to attend the Court, The Magistrate has to record such a finding before he proceeds to dispose of the case ex parte In the absence of any such finding indicating that the person is either wilfully avoiding service or is wilfully neglecting to attend the Court the Magistrate would have no jurisdiction to dispose of the proceeding ex parte. That apart; the very same proviso also stipulates that if an application is made for setting aside the ex parte order and good cause is shown, then the Court would be well within its jurisdiction to set aside the ex parte order so as to proceed afresh with the maintenance proceeding subject to such term