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Judgment
Mr. Arunachalam, J.
A few facts need narration. The Respondents filed a petition u/s 125, Crl. P.C. before the Sub Divisional Judicial Magistrate. Valliyur against the
Respondent and the same was taken on file as M.C. No. 9 of 1988. The trial Magistrate issued summons u/s 61, Crl. P.C. to the Petitioner herein,
who had received it on. 21-5-1988. The date of hearing had been fixed in the summons as 25-5-1988.
On the date of hearing, the Petitioner did not appear in the trial court, but had engaged a counsel to appear on his behalf and file a vakalat and
take time for counter, after receiving a copy of the maintenance petition filed by the Respondents. The trial Court accepted the vakalat presented
by the counsel for the Petitioner, but chose to act u/s 126 of the Crl. P.C,, setting him ex parte, on the view that the absence of the Petitioner was
wilful, though in fact he was represented by his counsel. The trial Magistrate has observed in paragraph 4 of his order that the absence of the
Petitioner in Court on 25-5-1988 was want on, and wilful avoidance. It is also further observed that no permission had been sought from the Court
for the absence of the Petitioner on 25-5-1988. This according to the Magistrate posed the need to pass an ex parte order in the main case itself.
I have heard Mr. P. Kulandaivadivelu, learned Counsel appearing for the Petitioner and Mr. Shanmuga Velayutham, learned Counsel appearing
for the Respondents.
A perusal of the summons issued clearly postulates the appearance of the Petitioner before the trial Court either in person or by a pleader.
Respecting the summons issued, the Petitioner engaged a counsel and the counsel had not only appeared before the trial Court, but had filed his
vakalat, as well. The counsel had prayed for furnishing of a copy of the maintenance petition to facilitate his counter being filed. There appears to
be practically no need for the presence of the Petitioner at that stage in this proceeding. If the Magistrate was of the view that the presence of the
Petitioner was necessary, he could have directed the counsel for the Petitioner to see to it that the Petitioner appeared before the Court on the next
hearing date. There is no material on record for the Magistrate to arrive at the conclusion that the Petitioner was wilfully avoiding appearance
before the Court. That there could be no wilful avoidance is patent from the conduct of the Petitioner having engaged a counsel and filing his
vakalat, to get along with the proceedings. Even the summons issued permitted his appearance, ''by pleader''.
Mr. Shanmugha Velayutham, learned Counsel for the Respondents referred to Section 126(2), Crl. P.C. which deals with the recording of
evidence in proceedings initiated u/s 125, Crl. P.C . This postulates recording of the evidence in the absence of the husband when his personal
appearance is dispensed with, but that could be done only if the Magistrate is satisfied that the person against whom an order for payment of
maintenance is proposed to be made, was wilfully avoiding service or wilfully neglecting to attend the court. The stage has not reached yet in this
case. The case was at the threshold and was for the appearance of the Petitioner and the proceedings have not reached the stage as yet of
recording evidence. The exercise of judicial discretion must have dictated to the trial Magistrate to give sufficient opportunity to the Petitioner to file
his counter before proceeding further in this case. The order passed by the trial Magistrate is neither in consonance with law nor equity and is
opposed to the fundamental Principles of natural justice.
The order of the trial Magistrate passing an ex parte order and awarding maintenance to the Respondents is set aside. The case records will be
sent to the Chief Judicial Magistrate, Tirunelveli, who will take this case on his file and dispose it of in accordance with law after affording
reasonable opportunity to both the parties to get along with the enquiry. The Chief Judicial Magistrate, Tirunelveli will dispose of the case as
expeditiously as possible. The records are to be despatched to the Chief Judicial Magistrate within one week from to-day. The revision petition is
ordered accordingly.