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2004 DIGILAW 301 (ORI)

SRI ARABINDA PARIDA v. PARULBALA PARIDA

2004-07-06

P.K.TRIPATHY

body2004
JUDGMENT : P.K. Tripathy, J. - Heard. 2. This application u/s 482, Code of Criminal Procedure stands disposed of at the stage of admission in the following manner. 3. Opposite Party filed Misc. Case No. 217 of 1999 in the Court of SDJM, Balasore, praying for maintenance u/s 125, Code of Criminal Procedure Though Petitioner appeared in that case, but at the time of hearing he did not participate and therefore he was set ex parte followed with an ex parte order of maintenance passed by learned JMFC, Balasore on 14.3.2001. Before disposal of that application u/s 125, Code of Criminal Procedure, Petitioner's effort to set aside the ex parte order and to permit him to participate in the proceeding was turned down by learned JMFC on 16.2.2001 on the ground that the application was prematured being covered by Sub-section (2) of Section 126, Code of Criminal Procedure Obviously that was a wrong approach by learned JMFC in as much as during pendency of the proceeding if at a later stage Petitioner wanted to contest on the issue on the claim of maintenance by the opposite party or to participate in the proceeding, the ex parte order could have been recalled and Petitioner could have been allowed to participate from that stage. Be that as it may, after the ex parte order was passed, Petitioner filed application u/s 126(2), Code of Criminal Procedure, registered as Misc. Case No. 223 of 2001. That application was filed on 8.11.2001. Petitioner advanced the contention that he was ignorant about the case and the ex parte order. Learned JMFC found such contention of the Petitioner to be contrary to the position on record and besides that the application u/s 126(2), Code of Criminal Procedure being barred by time and that, there was no application for condonation of delay. Accordingly, Criminal Misc. Case No. 223 of 2001 was dismissed. Petitioner preferred Criminal Revision No. 37 of 2002 and learned Sessions Judge, Balasore on 16.12.2002 dismissed that revision on perusal of record, because on the date of hearing of the revision neither party appeared and participated. 4. Accordingly, Criminal Misc. Case No. 223 of 2001 was dismissed. Petitioner preferred Criminal Revision No. 37 of 2002 and learned Sessions Judge, Balasore on 16.12.2002 dismissed that revision on perusal of record, because on the date of hearing of the revision neither party appeared and participated. 4. Learned Counsel for the Petitioner puts forth the contention of the Petitioner that Petitioner and the opposite party reside under the same roof and in the same residential premises and their children are being maintained by the Petitioner by taking care of their health, education and comfort and therefore, Petitioner should be given an opportunity to contest the claim of maintenance by the opposite party. He also states that, substantial amount of maintenance as per the ex parte order of maintenance have been deposited in the Court of JMFC, Balasore in compliance to the order passed by learned Sessions Judge in that Criminal Revision and by this Court on 31.10.2003. 5. Learned Counsel for the opposite party disputes to the contention relating to opposite party staying under the same roof and within the same residential premises where the Petitioner resides. He does not dispute to the above noted other contention of the Petitioner. 6. When the Petitioner and the opposite party have crossed the age of fifty and they have children out of the wedlock, Petitioner has no good ground, as it appears, to contest the claim of maintenance of the opposite party, because it is not the case of the Petitioner that he was providing maintenance to the opposite party or that he has no sufficient means to provide maintenance to her. Therefore, this Court finds no necessity to set aside the ex parte order of maintenance notwithstanding the order wrongly passed by learned JMFC on 16.2.2001 in rejecting his application to set aside the ex parte order and to permit him to participate in that proceeding. Another reason for taking that view is that Petitioner did not challenge that order in appropriate higher forum and sought for setting aside the ex parte order of maintenance on false ground of ignorance about the proceeding. 7. It is agreed by the parties that there should be an effort for their conciliation to have a peaceful life at the penultimate stage of the life and for that the mediation by the relatives and particularly the children be made. 7. It is agreed by the parties that there should be an effort for their conciliation to have a peaceful life at the penultimate stage of the life and for that the mediation by the relatives and particularly the children be made. In the event of a settlement between the parties, Petitioner is not precluded to file appropriate application u/s 127, Code of Criminal Procedure for rescinding or modifying the order of maintenance. The CRLMC is accordingly disposed of. CRLMC accordingly disposed of.