T.N. Singh, J.
1. The petitioner is the husband of the opposite party. He has come to this Court challenging validity of the order passed on 30-5-81 under Section 126, Cr. P.C. by which his application for setting aside the ex parte order of maintenance passed under Section 125 at the behest of his wife, the opposite party was rejected. On 4-4-80 learned Magistrate heard the case ex'parte and ordered the husband to pay maintenance at the rate of Rs. 100/- to the wife and Rs. 50/- to the minor daughter from the date of filing of the application. He also directed that the petitioner should pay the arrear in two equal instalments.
2. The application for maintenance was filed on 6-4-79 wherein the opposite party claimed that she was the legally married wife of the petitioner and during their wedlock she gave birth to a female child who was at that time one year old. She alleged that the petitioner had driven her out and has neglected to maintain her and the minor daughter. She also stated that the petitioner was drawing a monthly salary of Rs. 450/- and she was entitled to maintenance at the rate of Rs, 150/- for herself and Rs. 50/- for the minor daughter. On 5-6-79 an application was filed on behalf of the second party on which the Court ordered allowing him to file his objection, if any, before 5-7-79. However such objection was not filed until 12-9-79. On 25-9-79 the Court ordered the 1st party (wife) to produce her witnesses on the next date and on 13-11-79 summons were filed by her counsel to obtain orders from the Court for summoning the witnesses which she wished to examine in support of her case. The 2nd party, the petitioner before me, who was not present on earlier dates was absent on that date also and the Court ordered that if the 2nd party remained absent the case will be heard ex parte. On 28-12-79 the 1st party was present in the Court with 4 witnesses but the 2nd party was absent and filed an application praying for adjournment. On this date also the Court reiterated that the case should be heard ex parte but 'one last chance' should be given to the 2nd party and warned that on the next date if the 2nd party did not appear the case will be heard ex parte. On 20-2-80 also the 2nd party was absent and the Court gave him 'another chance' reiterating once again that on the next date the case would be heard ex parte fixing 4-4-80 for evidence. On that date another petition was filed for adjournment by the counsel but t he Court rejected the same holding that to be 'baseless and not at all convincing', and proceeded to hear the case ex parte 'as per previous order'. The 1st party was examined and front her deposition as well as from other materials on record learned Magistrate concluded that she was assaulted by the opposite party (2nd party) and driven out from the house and further that he had kept a hill-tribe woman with whom he was having illicit relations. Accordingly the order of maintenance as aforesaid was passed.
3. On 14-5-80 the petitioner filed an application under Section 126(2), Cr. P.C. for setting aside the ex parte order passed on 4-4-80 During the pendency of the said application the wife filed on 2-9-80 an application under Section 125(3) Cr. P.C. complaining that the petitioner had, without sufficient cause, failed to comply with the order of maintenance and prayed for necessary orders to be passed as contemplated in law. Both petitions were heard together and disposed of by the impugned order passed on 30-5-81. Learned Magistrate held that he was not satisfied that 'good cause' had been shown for setting aside the ex parte order. He held that the ex parte order was passed in the presence of the counsel of th? petitioner and further that when the case was taken up for ex parte hearing the Court was satisfied that the adjournment, prayed on that date was validly refused. Accordingly he rejected the petitioner's application but at the same time he allowed the wile's application under Section 125(3) and issued wan ant for levying the amount due. Both parts of this order are challenged before this Court.
4. Learned Counsel for the petitioner Mr. B, C. Das submits that the ex pane order of maintenance passed on 4-4-80 was patently without jurisdiction and that on 30-5-81 in passing the impugned order learned Magistrate similarly committed an error of law by rejecting the application without applying his mind to the requirements of the proviso to Sub-section (2) of Section 126. Let me, therefore, read the said provision:
(2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons cases:
Provided that if the Magistrate is satisfied that 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 and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.
5. In support of his submission he has cited some decisions to which I may now refer, In : 1960CriLJ1246 Nand Lal v. Kanhaiya Lal, some observations were made about the scope of Sub-section (6) of Section 488 of the old Code which is in pari materia with the provision extracted above of the new Code. Their Lordships held that the provision was mandatory and 'all' evidence had to be taken in the presence of the husband or the father as the case may be but added that the Section 488 did not contemplate a 'preliminary enquiry' before issuing a notice to the person against whom complaint was made claiming relief for maintenance because the provisions of Sections 200 to 203 (of the old Code) did not apply in such a case. This decision evidently did not deal with the proviso to Sub-section (6) which was in the same terms as the new proviso to Section 126(2). What was held illegal in that case was holding of 'preliminary enquiry' and the action of the Court rejecting the application under Section 488 on the basis thereof without issuing notice to the opposite party or respondent. In AIR 1963 Mys 239 : 1963 (2) Cri LJ 293, State v. Bhim Rao, the proviso in question was indeed considered and the Court held that because neither the order passed by the Magistrate nor the record disclosed that the Magistrate was satisfied that the husband was wilfully avoiding service or that he wilfully neglected to attend Court and, therefore, the ex parte order of maintenance was bad in law and had to be set aside. The Allahabad High Court in 1975 Cri LJ 465 (Kalika v. Smt. Jagdei) held that the words 'wilfully neglecting' meant 'designedly, deliberately or of set purpose', and therefore, it was not enough if the man happened to be absent on a particular date because that will only establish his physical absence. I do not think there should or can be any dispute about this legal proposition.
6. What is the object of the proviso? I have no doubt that it is meant primarily for expeditious disposal of proceedings under Section 125 which are of emergent nature because the provision is meant to relieve destitution and beggary and with that end to enforce the moral duty of a person whose actions produce such a situation creating social problems and vices leading to disharmony and an unjust social order. As I have observed in Akan Bala's case (1984) 1 Gau LR (NOC) 10 : (1984 Cri LJ (NOC) 210), the obligation to maintain wife and minor children who are unable to maintain themselves flows from the right of the man to marry and set up a family which is recognized in Article 16 of the Universal Declaration of Human Rights. The provisions of Section 125, therefore, provide, carrying out the mandate of Articles 15 and 39(a) of the Constitution, a speedy and effective remedy and the provisions of Chapter IX can in no way, therefore, be said to be less important than that of Chapter X in order of urgency. Indeed, both Chapters deal with acts and activities of individuals which impinge upon the right of the society to peace, tranquillity, harmony and orderliness for a just social order. The intrinsic evidence in the language of Sub-section (2) of Section 126 also indicates the same position. Firstly, the procedure of taking evidence in such cases is to be that followed in summons cases and because it is mandated that evidence in such proceedings shall be taken in the presence of the person against whom an order of maintenance is proposed, to make it possible for the Court to expedite disposal, power is given to pass ex parte orders in certain cases. Secondly, because the provisions of Chapter IX, do not lay down any time-limit for disposal of cases under Section 125, the same purpose is sought to be achieved by the legislature by providing for ex parte disposal in certain cases in a manner similar to one sanctioned by Sub-sections (2), (5) and (7) of Section 144. Therefore, the term 'wilful' used in relation to service of notice of the application on the person concerned or his neglect to attend the Court to take part in the proceeding so that the evidence may be recorded in his presence is to be construed in a manner as may fulfil the underlying object and purpose of the proviso.
7. I have no doubt that in the instant case on the facts and circumstances, as alluded, when the case was taken up ex parte there were materials before the Magistrate to be satisfied that the petitioner herein (2nd party before him) wilfully neglected to attend the Court, and that, therefore, he acted within his jurisdiction when he took up the case for ex parte hearing. Mr. Das has submitted that the application for adjournment filed on 4-4-80 was illegally rejected by the learned Magistrate. He has further submitted that learned Magistrate did not apply his mind to the application filed under Section 126(2) with which a medical certificate dated 3-5-80 'was also filed. Copies of both these documents are filed in this Court also as annexures to the instant application. From the medical certificate it appears that the petitioner was under treatment 'for malaria fever since 3rd to 7th Aprl., 1980' and that 'during the aforesaid period' he was 'physically unfit'. In the concerned petition (Annexure B) it was stated that he was working in a virtually inaccessible place without any means of communication and that 10 or 12 days before the date fixed in the case namely, on 4-4-80, he had informed his lawyer that he would be present on that date, but he suddenly fell ill. It was also stated in the petition that from his home to the place of work it was about 2 days journey by rail and road and farther that there was no telegraph office at Umrangshaw in the North Cachar District from where one had to come to Lanka which was about 42 miles off. In the impugned order passed on 30-5-81 learned Magistrate observed that in the adjournment petition (filed on 4-4-80) it was not mentioned that the petitioner had taken ill but that he had started from his place of work and had yet to reach Dharmanagar in North Tripura where the case was being heard. Learned Counsel Mr. Das relied on : 3SCR509 , Rafiq v. Munshi Lal, to submit that if his lawyer stated a wrong or false ground in the adjournment petition he should not be penalised therefor. However, I am not impressed by this argument because it appears to me that the petitioner wilfully neglected to attend the Court on that date, and this fact is borne out by his petition under Section 126(2) and the medical certificate. If he had really taken ill he was unfit only on and from 3-4-80 and nothing, therefore, prevented him to leave his place of work before that and indeed if he minded to come and attend the hearing on 4-4-80 he had to leave much earlier his place of work. On the other hand, if he had any other problem then also he had to send information to his lawyer much ahead so that it could reach him on or before 4-4-80. Therefore, according to me, the finding of learned Magistrate that the petitioner failed to show 'good cause' for setting aside the ex parte order passed on 4-4-80 is unassailable. It is not only that the petitioner was absent on 4-4-80 but, as alluded, he never attended the Court on any date fixed in the case. The records bore eloquent testimony to this fact. Therefore, there was, sufficient ground for the Magistrate to be 'satisfied' on 4-4-80 that the petitioner was 'wilfully neglecting to attend the Court.' This expression, according to me, refers to the conduct of the party with respect to his activity not on any particular date but to his course of conduct in the proceedings. So, whether the application for adjournment was validly rejected, according to me, is not really germane to the question agitated before me. The course of conduct of the petitioner showed that he wilfully neglected to attend the Court on several dates and thereby he was designedly delaying disposal of the case and decision on the application for maintenance to the detriment of his wife and the child whose livelihood was jeopardised.
8. I have, therefore, no hesitation to hold that the first part of the impugned order dated 30-5-81 is completely legal, valid and jurisdictionally perfect. But in so far as the second part of the order is concerned I think the submission of Mr. Das has substantial force with which I may deal now.
9. In this connection I may refer to Sub-section (3) of Section 125 which postulates that if a person ordered to pay maintenance 'fails without sufficient cause to comply with the order' the Magistrate could pass order thereunder and issue a warrant for levying the amount due in the manner provided for levying fines. Before such an order is passed, in my opinion, the person concerned is entitled to have reasonable opportunity to show cause against such order. Mr. Das also cited certain decisions in support of his contention, in support of the legal proposition about which, however, I have no doubt. In AIR 1959 All 156 : 1959 Cri LJ 1039 Laxmi Narain v. State, it was held that the surest way of ensuring that the husband has been afforded an opportunity of making such an offer before a warrant is issued is by issuing a notice to him to show cause why warrant should not be issued. It was further held that the Magistrate must have evidence before him to satisfy himself that warrant should be issued and that an order passed by a Magistrate without issuing a notice and holding an enquiry is illegal. The Mysore High Court in a decision reported in 1962(2) Cri LJ 706 Padmavathi v. Kalyan Rao, held that although Sub-section (3) of Section 488(old) did not in so many words require that a prior nonce before passing an order thereunder has to be issued to the husband, such a requirement was implicit in that sub-section and for this reliance was placed on the Allahabad decision, Kerala High Court in a decision reported in 1980 Cri LJ 1191 K. Nilliyanandan v. B. Radhamani, held almost in similar terms and observed that to be consistent with the principles of natural justice a notice should be issued before issuing warrant of arrest. However, to counter the weight of the authorities Mr. S. K. Sen, learned Counsel for the respondent, placed reliance on a Division Bench decision reported in : AIR1967Cal136 , Moddari Bin v. Sukdeo Bin wherein it was held that Sub-section (3) of Section 488 does not expressly lay down any requirement for issuing notice of show-cause to the defaulter before issuing a warrant. However, their Lordships further observed that where there was sufficient material before the Magistrate to come to the conclusion that the defaulter had sufficient means but he was wilfully neglecting to comply with the order of maintenance actual notice to the defaulter before issuing a warrant was not required. According to me this decision does not lay down that the Magistrate before passing an order under Section 125(3) need not be satisfied that the person concerned failed, without sufficient cause, to comply with the order of maintenance because that is explicitly mandated by the said provision whereby reasonable opportunity is postulated. There may be cases where the requirement of notice may be dispensed with on the particular facts and circumstances of the case but reasonable opportunity before a penal action is taken against him must be afforded to the person concerned in my opinion. The consequences of an order under Sub-section (3) of Section 125 are far-reaching and of penal nature exposing him to a situation wherein he may be deprived of his personal liberty. In such- cases, therefore, the requirement of reasonable opportunity cannot, under any circumstances, be dispensed with. Any other view, would be violative of Article 21 of the Constitution.
10. In the instant case, as alluded, both the applications, one filed by the husband under Section 126(2), and the other under Section 125(3) by the wife, were disposed of together. It does not appear from the order that the petitioner was afforded any opportunity to show cause against the prayer made in the petition under Section 125(3). It is also not manifested in the order that the petitioner failed without sufficient cause to comply with the order. Indeed the facts of the case do not show that action could be taken under Section 125(3) because after the ex parte order was passed on 4-4-80, very soon thereafter, on 14-5-80, the petitioner filed an application under Section 126(2) Cr. P.C. In this view of the matter I am clearly of the opinion that the second part of the impugned order by which the application of the wife, the respondent herein, was allowed illegally without fulfilling the requirement of law is without jurisdiction and, therefore, that part of the order must be, and is accordingly, set aside.
11. In the result, the application Is allowed to the extent indicated above. The ex purte order awarding maintenance to the respondent, passed on 4-4-80, is maintained and confirmed but the order dated 30-5 81 issuing warrant levying the amount due therein is set aside. Learned Magistrate shall issue notice to the petitioner to show cause why the application under Section 125(3) filed by the respondent should not be allowed and after giving hearing thereon shall dispose of the matter in accordance with law. This remand shall not, however, deprive the respondent the rights accrued to her in terms of the interim order passed by this Court on 16-9-81.
12. Before parting with the record, 1 would like to observe that under fortuitous circumstances judgment in this case could not be delivered earlier. Although on the prayer of learned Counsel for the respondent judgment in this case was reserved for three weeks I had to be away making judicial detour from Imphal on the East to Agartala on the West and did not have time to sit at the principal seat to fulfil earlier this outstanding assignment. Let the records be sent down forthwith.