JUDGMENT : K.P. Mohaptra, J. - The criminal revision is directed against the ex Parte order passed by the learned Judicial Magistrate, First Class, Banpur allowing maintenance at the rate of Rs. 150/- per month in favour of the opposite party. 2. The facts of the case are stated in brief. The opposite party files a petition before the learned Judicial Magistrate u/s 125 of the Code of Criminal Procedure ('Code' for short) stating therein that she was married to the Petitioner according to the caste custom in the month of Baisakh, 1981. After the marriage was solemnised, both of them lived together for a few months. Thereafter, she was illtreated and was ultimately driven out from the matrimonial home. Ever since, the Petitioner has neglected and refused to maintain her although he has sufficient means to do so. Therefore, she claimed maintenance at the rate of Rs. 150/- per month. 3. In his counter, the Petitioner denied the alleged marriage, but admitted that he had fallen in love with the opposite party on account of which her father put pressure on him to marry her. But as a matter of fact, neither he nor the members of his family were willing to perform his marriage and so the marriage was not solemnised. Therefore, the question of driving out the opposite party from the matrimonial home or neglecting and refusing to maintain her did not arise. 4. The case was taken up for hearing for the first time on 11.11.1982 on which date the opposite party applied for adjournment, but the Petitioner was present in Court. Adjournment was allowed and the case was posted to 4.12.1982 for hearing. On 4.12.1982 the opposite party was present with witnesses, but the advocate for the Petitioner applied for adjournment on the ground of the Petitioner?s illness in support of which he also produced a telegram in the Court. The learned Judicial Magistrate refused adjournment and passed the following order: The Petitioner is present with four witnesses. The O.P. is absent. Advocate for the O.P. files a petition asking one month adjournment on the ground of illness of the O.P The Advocate for the O.P. filed the telegram in support of illness of the O.P Advocate of O.P. had not represented the O.P and had not taken any step to fight the case on behalf of Opposite Party. Advocate for the O.P. files a petition asking one month adjournment on the ground of illness of the O.P The Advocate for the O.P. filed the telegram in support of illness of the O.P Advocate of O.P. had not represented the O.P and had not taken any step to fight the case on behalf of Opposite Party. There is no bar if the advocate on behalf of O.P fights the case. Hence the adjournment petition has no merit and is rejected. Put up after lunch hours for hearing. When the case was taken up for hearing, neither the Petitioner nor his advocate was present in the Court. Therefore, the Petitioner was set ex parte and the case was taken up for ex parte hearing. The opposite party examined herself as P.W.1 and another witness as P.W.2. After recording their evidence the learned Judicial Magistrate passed the impugned ex parte order u/s 125 of the Code allowing maintenance in favour of the opposite party at the rate of Rs. 150/- per month. 5. Mr. B.H. Mohanty, learned Counsel appearing for the Petitioner contends that the learned Judicial Magistrate did not comply with the mandatory provisions of Sub-section (2) of Section 126 of the Code and did not record his satisfaction to the effect that the Petitioner wilfully neglected to attend the Court and so the ex parte order passed by the learned Judicial Magistrate was not only without jurisdiction, but also it was not in accordance with law for the further reasons that the evidence of the case was not recorded in the Petitioner?s presence Mr. R. Mohapatra, learned Counsel appearing for the opposite party, on the other hand, challenges the maintainability of the criminal revision on the ground that the Petitioner ought to have approached the learned Judicial Magistrate for setting aside the ex parte order in accordance with Sub-section (2) of Section 126 of the Code. But as a criminal revision was straight away filed in this Court, it is not maintainable according to law. He further urges that the aforesaid provisions are not of mandatory character and as no prejudice was caused to the Petitioner the impugned order cannot be set aside. But as a criminal revision was straight away filed in this Court, it is not maintainable according to law. He further urges that the aforesaid provisions are not of mandatory character and as no prejudice was caused to the Petitioner the impugned order cannot be set aside. In view of the contentions raised, the following questions arise for consideration: (i) Whether the criminal revision is maintainable: (ii) Whether the provision of Sub-section (2) of Section 126 are of mandatory character; (iii) Whether it was obligatory on the part of the learned Judicial Magistrate to record satisfaction to the effect that the Petitioner wilfully neglected to attend the Court before passing the ex parte order; and (iv), Whether the Petitioner was prejudiced. 6. In order to support his contention that the criminal revision is not maintainable. Mr. Mohapatra has placed reliance on a decision of Mysore High Court reported in State of Mysore Vs. Ghousuddin and Another, In that case an ex parte order was passed u/s 488 of the old Code and a learned Single Judge expressed the view that when the law specifically lays down a particular procedure to be adopted for setting aside the ex parte order, it has to be complied with before an aggrieved person proceeds to invoke the revisional jurisdiction of the higher Courts. With respect, I am unable to agree for the reasons to follow: When an ex parte order u/s 125 of the Code is passed against the husband, he has to remedies open according to the provisions of the Code itself. The first remedy is by making an application according to Sub-section (2) of Section 126. The second remedy is by way of involving the revision jurisdiction of the appropriate Court u/s 397. No where it has been provided that unless the husband takes recourse to the first remedy, the second remedy is not available to him according to law. There may be cases in which after an ex parte decree is passed against a husband, he may not like to move to set aside the ex parte order, but may invoke the jurisdiction of the revisional Court on the question of quantum of maintenance. There may be cases in which after an ex parte decree is passed against a husband, he may not like to move to set aside the ex parte order, but may invoke the jurisdiction of the revisional Court on the question of quantum of maintenance. In such a case, it cannot be said that the husband should first approach the Court which passed the ex parte order under Sub-section (2) of Section 126 of the Code and may later approach the appropriate Court invoking it's revisional jurisdiction. When there is no specific bar in law that the husband should prefer one way or the other, in my view, both the remedies are available to him and he may take recourse to the one which he considers to be appropriate for the purpose of his success. I am, therefore, unable to agree with Mr. Mohapatra and hold that his revision is maintainable. 7. Two decisions were cited by Mr. Mohapatra to support his contention that the provisions of Section 126(2) are not of mandatory character. They are Major Jogindar Singh Vs. Bibi Raj Mohinder Kaur, and Arunkumar Surajmal Jain Vs. Chandanbai Rupchandsa Jain and Others. In the latter case the Nagpur High Court followed the view of the Punjab High Court and in both the decisions a view was taken that the provisions of Section 488(6) of the old Code (in the earlier case) and Sub-section (2) of Section 126 of the old Code (in the earlier case) and Sub-section (2) of Section 126 of the Code (in the latter case) are not of mandatory character. Mr. Mohanty, on the other hand, cited a Full Bench decision of the Punjab and Haryana High Court reported in Joginder Singh Surmukh Singh Vs. Smt. Balkaran Kaur, and urged that by necessary implication the earlier view expressed in Major Joginder Singh's case, (supra) was reversed. Mr. Mohanty, on the other hand, cited a Full Bench decision of the Punjab and Haryana High Court reported in Joginder Singh Surmukh Singh Vs. Smt. Balkaran Kaur, and urged that by necessary implication the earlier view expressed in Major Joginder Singh's case, (supra) was reversed. In this case, the Full Bench of the Punjab & Haryana High Court held that once the Magistrate has given a finding about his satisfaction of the avoidance of service or neglect to attend the Court on the part of the Respondent before him being wilful, an order passed ex parte by him would be an "order so made" notwithstanding the fact that in reality the avoidance of service or the neglect to attend the Court was actually not wilful, a fact which on being proved before the Magistrate would entitle the party aggrieved by the ex parte order to have it set aside. He further referred to Nandlal Misra Vs. K.L. Misra in which the following observation has been made dispelling all doubts about the mandatory nature of the pari materia provision of Section 488(6) of the old Code which is equally applicable to Sub-section (2) of Section 126 of the Code: ...Sub-section 6 of Section 488 is mandatory in form and in clear terms is prescribes the procedure to be followed by the Magistrate. Under that Sub-section all evidence under that chapter shall be taken in the presence of the husband or the father, as the case may be, or when his personal attendance is dispensed within the presence of his pleader, and shall be recorded in the manner prescribed in the case of summons-cases. The word 'all' with which the Sub-section opens emphasizes the fact that no evidence shall be taken in the absence of the father or his pleader... It is, therefore, abundantly clear that the provisions of Sub-section (2) of Section 126 are of mandatory character. 7. A plan interpretation of Sub-section (2) of Section 126 has been made in Smt. Sulochana Sahu v. Baman Ch. It is, therefore, abundantly clear that the provisions of Sub-section (2) of Section 126 are of mandatory character. 7. A plan interpretation of Sub-section (2) of Section 126 has been made in Smt. Sulochana Sahu v. Baman Ch. Sahu 1987 (1) O.L.R. 558, the relevant part of which is quoted below for easy reference: Thus the sum and substance of the principal 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 persons against whom 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. It is clear and mandatory on the part of the Judicial Magistrate to record the evidence of the proceeding u/s 125 of the Code in the presence of the person against whom an order for payment of maintenance is proposed to be made or in the presence of his pleader if he is exempted from personal appearance and has been permitted to be represented by his pleader. The exception to the above rule finds place in the proviso below it. If the Judicial Magistrate finds that the person against whom an order for payment of maintenance is proposed to be made is wilfully neglecting to attend the Court, in that event, he may proceed to hear and determine the case ex parte, but before doing so the Judicial Magistrate must record his satisfaction that the person is wilfully neglecting to attend the Court. Now reverting to this case, it is found from the order passed by the learned Judicial Magistrate quoted in para-4 that the Petitioner was not represented by his advocate nor was he present when the ex parte evidence was recorded. Now reverting to this case, it is found from the order passed by the learned Judicial Magistrate quoted in para-4 that the Petitioner was not represented by his advocate nor was he present when the ex parte evidence was recorded. Although it was the second date of hearing when the Petitioner applied for adjournment and a telegram sent by him intimating his illness to his advocate was presented to the Court the learned Judicial Magistrate did not record reasons either that the Petitioner was wilfully neglecting to attend the Court or other-wise. Therefore, the learned Judicial Magistrate committed a material irregularity in passing the impugned order. Such an order necessarily caused prejudice to the Petitioner. 8. I am conscious of the fact that the opposite party approached the Court in the year 1982 and in the meanwhile five years have already elapsed. The proceedings has to be remanded to the Court of the learned Judicial Magistrate and it will take some more time for its final disposal. In this view of the matter, I consider it appropriate to direct the Petitioner to pay a sum of Rs. 500/- (rupees five hundred) to the opposite party as soon as the records reach the Court of Judicial Magistrate and unless the amount is paid the Petitioner shall not be permitted to participate in the proceeding. The learned Judicial Magistrate shall try to dispose of the proceeding within three months. Both the parties shall appear before him on 21.8.1987 to receive directions. The lower Court records shall be sent back forthwith. 9. In the result, the criminal revision is allowed and the impugned order is set aside. The case by remanded to the Court of the Judicial Magistrate, First Class, Banpur for fresh disposal in accordance with law in the light of the observations made above. Final Result : Allowed