1993 CRI. L. J. 1892 ::(1994) 21 CriLT 75 ::1993 (3) RecCriR 138 ::(1993) 3 AllCriLR 843 ::1993 CalCriLR 254 ::1993 (2) DMC 263

Calcutta High Court

Hon'ble Judge(s): A. K. Bhattacharjee , J

Criminal P.C. (2 of 1974) , S.126(2) Proviso— Exparte order of maintenance - Setting aside of - Limitation - Ex parte order passed against husband - Magistrate not recording his satisfaction that husband was willfully avoiding service or willfully neglecting to attend court - Period of limitation prescribed in Section 126(2), not applicable - Section 5 of Limitation Act, however, can be invoked. Limitation Act (36 of 1963) , S.5, S.29(2)— The Court can pass an ex parte order only when it is satisfied that the notice of the proceeding has been duly served on the other party or that if the same has not been served, he was willfully avoiding service. Even when the Magistrate is satisfied that the notice has been served he will not proceed to dispose of the proceedings ex parte without being satisfied that the other party is willfully neglecting to attend the court in spite of the @page-CriLJ1893 service of the notice. An ex parte order is possible only after satisfying these essential requirements of Section 126(2), Cr. P.C. If the Magistrate is not satisfied about the prerequisite conditions that the person against whom an order for payment of maintenance is proposed to be made is willfully avoiding service or willfully neglecting to attend the court, there is not scope for passing an ex parte order.....