Orissa High Court
Smt. Sulochana Sahu vs Baman Ch. Sahu on 3 April, 1986
Equivalent citations: 1986(I)OLR558
JUDGMENT K.P. Mohapatra, J.
1. 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 under Section 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 under Section 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 under Section 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 1985 (II) O L R 435 (Bharatc@ Kethia Mallik v. 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 terms including terms as to payment of costs. In 1975 Crl L. J. 405 (Shoo Nath & others v. The State), a similar question arose with reference to the identical Section 488 in the old Code and it was observed that "wilful negligence" is a question of law though it has to be decided on the basis of given facts Wilful means designedly, deliberately of set purpose, that is to say the mind and the overt action moving together It is not enough if a man happens to be absent on a particular date because that will only establish his physical absence, but whether that absence is wilful or negligent or wilfully negligent is an inference of law to be drawn from the proved facts and circumstances In 1983 Crl. L. J. 1672 (Bina Ganguli v. Rash Behari Ganguli) it was held that the proviso to Section 126(2) of the Code explicitly provides that the Magistrate may 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. So a Magistrate is required to arrive at a positive conclusion before he passes an ex parte Order that the person against whom the order is proposed to be made is wilfully avoiding service or neglecting to attend the Court. When an ex parte order under Section 126 of the Code is therefore made, the conclusion is inescapable that the Magistrate was satisfied not only regarding due service of process but also regarding opposite party's wilful avoidance of service or wilful neglect to attend the Court. Consequently subsequent to such ex parte order the Magistrate should be slow and cautious to set aside the ex parte order. Only when cogent and convincing evidence is produced to satisfy that there was no wilful avoidance of service or wilful neglect to attend the Court, the Magistrate will set aside the exparte order in 1985 Cri. L. J. 1294 {Sukhirthammal v. Subramaniam), it was held that so far as the proviso to Section 126(2) is concerned, a more rigorous prerequisite is contemplated in that there should be either wilful avoidance of service or wilful neglect to attend Court after having accepted service. The word wilfully" means "deliberately, obstinately, purposefully, intentionally or knowingly". The use of the word; wilfully; before the words "avoiding service" or "neglecting to attend the Court" points out to the obligation cast on the Magistrate to seek from the material placed before him, his satisfaction that the person against whom an order for payment of maintenance is proposed to be made is deliberately, intentionally or knowingly avoiding to accept service or neglecting to attend the Court. Therefore, the Magistrate can proceed ex parte against that person only when the material placed before him compels him to come to the conclusion that the person knew about the summons sought to be served upon him and in spite of that knowledge he is deliberately or intentionally avoiding to accept service or deliberately neglecting to attend the Court Unless the condition precedent of one of the two alternatives is satisfied, the Magistrate cannot proceed ex parte against that person Further, if the Magistrate is satisfied that good cause is shown any order so made which clearly means an order for maintenance passed ex parte can be set aside in 1985 Cri. L. J. 1802, (Pradip Kumar Bhowmick v. Smt. Minu Bhowmick), it was held that the object of the proviso to Section 126(2) is for expeditious disposal of proceedings under Section 125 which are of emergent nature, because the provision is meant to relieve destitution and beggary and with that end to enforce the moral duty of a person whose actions produce such a situation creating social problems and vices leading to disharmony and unjust social order.
5. Thus, the sum and substance of the principle of law is that if 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-Before proceeding to hear and determine the case ex Parte, a specific order has to be recorded by the Magistrate to the effect that the person against when an order for payment of maintenance is proposed to be made is wilfully avoiding service or wilfully neglecting to attend the Court. An ex parte order of maintenance may be set aside for good cause shown on an application made within the period of limitation subject to such terms including terms as to payment of costs.
6. Now coming back to the case in hand, it appears from the order dated 20-12-1984 quoted in paragraph 2 above that both the parties were present in Court. When the evidence of the petitioner (P. W. 1) was recorded the opposite party was present. But when the time for cross-examining the petitioner came, he made an application for adjournment on the ground that his Advocate was absent. The petition did not find favour with the learned Court below who rejected the same and set the opposite party ex parte. Thereafter, he completed the proceeding and on 4-1-1985 passed the ex parte order allowing maintenance to the petitioner. In the impugned order, it was found by him that absence of the Advocate was bonafide and in his absence, it was not possible on the part of the opposite party to proceed further with the case. As a matter of fact even if the opposite party was physically present in Court, it was not possible on his part in the facts and circumstances of the case to cross-examine the petitioner and other witnesses and also to examine himself and his own witnesses if any. In short, in a legal proceeding of this nature, it was not possible on his part to properly defend himself against the petitioner's claim. In view of these facts which are patent on the records of the case, I do not propose to take a view contrary to the one taken by the learned Court below, I therefore with him that good cause was shown for setting aside the ex parte order of maintenance.
7. The learned counsel for the petitioner urged that ever since the petitioner was driven out of her matrimonial home, she is living the life of a destitute and so far, not a pie has been paid to her by the opposite party for maintenance. Therefore, if for any reason the Court will set aside the ex parte order of maintenance, a condition should be imposed to the effect that the opposite party should pay interim maintenance to the petitioner.
The records of the case reveal that for the second time the ex parte order of maintenance was set aside. A period of four years is going to elapse and the petitioner is still going without maintenance which is the Very source of her sustenance. As rightly pointed out in 1985 Cri. L. J. 1802 (supra) proceedings under Section 125 are of emergent nature which require expeditious disposal because they are meant to relieve destitution and beggary. Therefore, in order to provide the petitioner with inter maintenance, I posed the question to the learned counsel for both the parties whether in this revision such a direction can be given. Both of them agreed that interim maintenance inheres in Section 125 and so there is no bar for this Court to grant interim maintenance. In S. L. P. (Criminal) No. 1028 of 1984 decided on 9. 10. 1985, the Supreme Court has taken the view that while a proceeding under Section 125 of the Code is pending, interim maintenance in a suitable case can be allowed to the wife. That apart, an ex parte order of maintenance can be set aside subject to such terms including terms as to payment of costs to the opposite party, which means, the terms to be imposed for setting aside an ex parte order of maintenance may include interim maintenance allowance. In the facts and circumstances of the case and without prejudice to the ultimate result of the proceeding, I am of the view that in order to save the petitioner from destitution and beggary, interim maintenance under Section 125 should be allowed.
8. For the reasons stated above, the impugned order is affirmed subject to the following conditions :
1. The opposite party shall pay costs of Rs. 100/- as directed by the learned lower Court.
2. The opposite party shall deposit a sum of Rs. 1,000/- in the trial Court towards past interim maintenance within a period of two months, which the petitioner shall be entitled to withdraw on furnishing security to the satisfaction of the said Court.
3. The opposite party shall deposit a sum of Rs. 75/- on the 10th of every month towards interim maintenance. The first such deposit shall be made on the 10th of July, 1986 and the subsequent deposits shall be made on the 10th of every succeeding month till disposal of the case. The petitioner shall be entitled to withdraw the monthly maintenance allowance on furnishing security to the satisfaction of the said Court.
The case is disposed of accordingly.