C. R. PAL, J. ( 1 ) THE petitioner questions the legality of the order dated 25-8-1995 passed by the learned Sub-divisional Judicial Magistrate, Gunupur (in short, 'sdjm') attaching the salary of the present petitioner towards the interim maintenance granted in favour of the opposite party. ( 2 ) THE facts of the case are as follows :the opposite party of this Misc. case filed a petition under S. 125 of the Code of Criminal Procedure, 1973 claiming maintenance at the rate of Rs. 800/- per month from her husband, the present petitioner, alleging that she was tortured and ill-treated by her husband for not fulfilling his demand of dowry and was forced to leave the house of her husband on 16-8-1992 and since then she was living with her uncle. It is also alleged that her husband has, sufficient means and is liable to maintain her as she is unable to maintain herself. The said petition was registered as Misc. case No. 2 of 1993. While the Misc. case was pending for appearance of this petitioner (hereinafter referred to as "the opposite party'), the learned S. D. J. M. passed an order on 23-3-1993 granting interim maintenance of Rs. 400/- per month in favour of the present opposite party (hereinafter referred to as 'the wife') and directed the opposite party to show cause as to why the order shall not be made absolute. Thereafter, the case was adjourned from time to time for appearance of the opposite party, while the case was pending for appearance and stood posted to 15-9-1993 for return of service the learned counsel of the wife appeared before the Court and submitted that although the opposite party who was also an accused in I. C. C. No. 2 of 1993 was attending the Court in that complaint case was avoiding to appear in Misc. Case No. 2 of 1993. So the learned S. D. J. M. directed the advocate of the Opposite party engaged in ICC No. 2 of 1993 to appear before the Court on behalf of the opposite party in the Mise. case. The learned counsel gave an undertaking to appear in the Misc. case on behalf of the opposite party and accordingly issuance of summons to the opposite party in that Misc. case was dispensed with. case. The learned counsel gave an undertaking to appear in the Misc. case on behalf of the opposite party and accordingly issuance of summons to the opposite party in that Misc. case was dispensed with. But again though the case was posted to 15-9-1993, the same was advanced to 25-8-1993 in absence of the opposite party and his counsel and the impugned order was passed attaching the salary of the opposite party. Being aggrieved by the said order, the opposite party has come up with this petition invoking the jurisdiction of this Court under S. 482, Cr. P. C. to set aside the order. ( 3 ) MR. C. A. Rao, learned counsel for the petitioner before us contended that the impugned order passed by the learned S. D. J. M. to attach the salary of the petitioner without giving him any opportunity either before passing the order granting maintenance or before passing the order of attachment of being heard is against the principles of natural justice and is liable to be set aside. The learned counsel for the wife, however, contended that S. 126, Cr. P. C. authorises the Magistrate to pass ex parte order of maintenance and as such, the order passed by the learned S. D. J. M, is sustainable. Section 126 of the Code lays down the procedure which is to be followed in deciding a petition under S. 125, Cr. P. C. The proviso to sub-Sec. (2) of S. 126 stipulates that if the Magistrate is satisfied that the opposite party is wilfully avoiding service, or wilfully neglecting to attend the Court, he may proceed to hear and determine the case ex parte but such an ex parte order made by the Magistrate may be set aside subsequently on good cause being shown within the three months from the date of the order. The essence of the proviso is wilful avoidance of service or wilful negligence to attend the Court and unless the Magistrate is satisfied of such conduct of the opposite party, he would have no jurisdiction to proceed ex parte. But where in a proceeding under S. 125, Cr. P. C. a petition supported with an affidavit is filed claiming interim maintenance the Magistrate in appropriate case may grant interim maintenance ex parte even before service of notice on the person from whom maintenance is claimed. But where in a proceeding under S. 125, Cr. P. C. a petition supported with an affidavit is filed claiming interim maintenance the Magistrate in appropriate case may grant interim maintenance ex parte even before service of notice on the person from whom maintenance is claimed. Such a view also finds support from the law laid down by the Apex Court in Smt. Savitri v. Govind Singh Rawat, AIR 1986 SC 984 : (1986 Cri LJ 41), wherein it has been held that order for interim maintenance may be made in an appropriate case ex parte pending service of notice of the application subject to any modification or even an order of cancellation that may be passed after the person against whom such an order is made may be heard. But in the instant case, the impugned order has been passed under different circumstances. It appears that though the learned Magistrate awarded the interim maintenance by his order dated 23-3-1993 and issued a notice to the opposite party in that Misc. case to show cause as to why the order shall not be made absolute he asked the counsel of the opposite party who was appearing for the accused-husband in ICC No. 2 of 1993 on 24-8-1993 to appear in the Misc. case No. 2 of 1993 for the opposite party before the service of show cause notice on him. The learned counsel filed a memo with an undertaking to file the Vakalatnama and the counter by the next date of posting i. e. 15-9-1993, but before the appointed date, the learned Magistrate advanced the case to 25-8-1993 on the petition filed by the wife and passed the order of attachment of salary of her husband without giving him any opportunity to defend his case. It appears from the order of the learned Magistrate dated 25-8-1993 that on the undertaking of the counsel for the opposite party, he dispensed with issuance of summons to the opposite party. So the learned Magistrate accepted the appearance of the counsel as the appearance of the opposite party on 24-8-1993. Therefore, the order passed on the next day i. e. on 25-8-1993 by the learned Magistrate although has been passed without even serving a copy of the petition on the opposite party or his counsel cannot be treated as on ex parte order as envisaged under S. 126, Cr. Therefore, the order passed on the next day i. e. on 25-8-1993 by the learned Magistrate although has been passed without even serving a copy of the petition on the opposite party or his counsel cannot be treated as on ex parte order as envisaged under S. 126, Cr. P. C. Though an order for interim maintenance can be passed ex parte the circumstance must support the necessity of such an order. Here in the instant case, it is alleged by the wife before the learned Magistrate that she was deserted by her husband on 16-8-1992. She filed the petition for maintenance under S. 125, Cr. P. C. on 11-1-1993. Along with her petition she also tiled a petition for interim maintenance supported with an affidavit, but the said petition was moved only on 23-3-1993. The learned Magistrate passed the order awarding interim maintenance on 23-3-1993 and passed the order of attachment on 25-8-1993 without giving any notice to the counsel of the petitioner who had already appeared for the opposite party. As the learned Magistrate has passed the impugned order without hearing the opposite party or his counsel, the order is liable to be set aside. ( 4 ) IN course of hearing, the learned counsel appearing for the wife expressed her anxiety regarding the maintenance of the wife. According to her, interim maintenance is necessary for sustenance of life and to save the wife from beggary. The learned counsel for the husband submitted that without prejudice to the rights of the husband to challenge his liability to maintain his wife and the quantum of maintenance, the Court may allow some amount as interim maintenance to the wife and the trial Court be directed to dispose of the Misc. case on merits as quickly as possible. ( 5 ) CONSIDERING the above submission, instead of remanding the case for fresh disposal of the petition for interim maintenance after affording opportunity to the opposite party to defend his case we direct that the opposite party shall deposit a sum of Rs. 300/- (rupees three hundred) per month in the trial Court towards interim maintenance of his wife till the disposal of the Misc. Case No. 2 of 1993 by the trial Court. The amount so deposited be released in favour of the wife, i. e. the petitioner of Misc. 300/- (rupees three hundred) per month in the trial Court towards interim maintenance of his wife till the disposal of the Misc. Case No. 2 of 1993 by the trial Court. The amount so deposited be released in favour of the wife, i. e. the petitioner of Misc. case No. 2 of 1993 and this arrangement shall be effective from April 1986. The parties are also directed to cooperate with the Court which is directed to dispose of the Misc. case on merits within six months from the date of receipt of this order without being influenced by the quantum of maintenance fixed by this Court as an interim arrangement. For the above purpose the counsel of the parties are directed to inform the parties to appear before the trial Court on 4-5-1996. The Criminal Misc. case is accordingly allowed. The LCR be sent back immediately. Petition allowed. .