Advocates:
['M/s Ajmalkhan S A', '', 'Ph', 'Mahammed Hussain H', 'Hassanul Bazari J M', 'M/s JothiBasu M', '', 'Ph', 'Vak filed', 'R', 'Prabakaran V T']

Crl.R.C.(MD).No.897 of 2021

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Reserved on : 17.08.2022

Pronounced on : 09.09.2022

CORAM

THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR

Crl.R.C.(MD)No.897 of 2021

Pandiyarajan

: Petitioner//Petitioner/Respondent

Vs.

1.Manimegalai @ Sawithri

2.Minor Pugalini

: Respondents/Respondents/Petitioners

PRAYER: Criminal Revision Petition has been filed under Section 397 and 401

Cr.P.C, to call for the records and set aside the order in Un numbered Cr.M.P.

No. of 2019 in M.C.No.21 of 2018 on the file of the Family Court,

Srivilliputhur dated 11.08.2021 and consequently set aside the ex-parte order in

M.C.No.21 of 2018 dated 16.04.2019.

For Petitioner

: Mr.S.A.Ajmalkhan

For Respondents : Mr.M.Jothi Basu

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Crl.R.C.(MD).No.897 of 2021

ORDER

This Criminal Revision is directed against the order rejecting a petition

filed under Section 126(2) of the Code of Criminal Procedure dated 16.04.2019

passed in Un numbered Cr.M.P. in M.C.No.21 of 2018.

2. Admittedly, the marriage between the petitioner and the first respondent

was solemnized on 27.11.2014 as per the Hindu Rites and Customs at Dhandal

Dhayadiyar Kalyana Mandapam, Rajapalayam and that due to their wedlock,

they were blessed with a female child, the second respondent herein on

04.11.2015.

3. It is evident from the records that the respondents have laid a

maintenance claim against the petitioner in M.C.No.21 of 2018 on the file of the

Family Court, Srivilliputhur, that though the petitioner, after the receipt of Court

notice, has entered into appearance, has failed to file counter and to appear

before the concerned Court subsequently and that therefore he was set ex-parte.

4. It is further evident that the learned Judge of the Family Court, after

conducting enquiry, has passed an ex-parte order dated 16.04.2019 directing the

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Crl.R.C.(MD).No.897 of 2021

petitioner to pay monthly maintenance at Rs.5,000/- (Rupees Five Thousand

only) to the first respondent and monthly maintenance at Rs.3,000/- (Rupees

Three Thousand only) to the second respondent from the date of petition.

5. It is not in dispute that the petitioner has filed a petition in H.M.O.P.No.

174 of 2015 for divorce, that the first respondent has filed a petition in

H.M.O.P.No.131 of 2016 for restitution of conjugal rights, that the trial Court,

after enquiry, vide common order dated 24.07.2019 dismissed the divorce

petition and allowed the petition for restitution of conjugal rights and that the

petitioner, aggrieved by the said common order, has preferred two appeals in

H.M.C.M.A.Nos.39 and 40 of 2019 and the same are pending on the file of the

District Court, Srivilliputhur.

6. Meanwhile, the petitioner, aggrieved by the ex-parte order of

maintenance, has filed a petition under Section 126(2) Cr.P.C. seeking orders for

setting aside the ex-parte order dated 16.04.2019 and the learned Judge of the

Family Court, Srivilliputhur, by holding that since the said petition under Section

126(2) Cr.P.C. was filed, after the expiry of three months period from the date of

order, the petition itself is not maintainable, rejected the said petition. Aggrieved

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Crl.R.C.(MD).No.897 of 2021

by the said order of rejection, the petitioner/husband has come forward with the

present revision.

7. No doubt, the ex-parte order was passed in M.C.No.21 of 2018 on

16.04.2019 and the petitioner has filed the above application under Section

126(2) Cr.P.C., for setting aside the ex-parte order on 26.11.2019.

8. At this juncture, it is necessary to refer Section 126(2) Cr.P.C., which

reads as follows:-

“126(2):- All evidence in such proceedings shall be taken in

the presence of the person against whom an order for payment of

maintenance is proceed to be made, or, when his p