- (1.) THIS Rule is directed against the order elated 25. 3. 77 passed by Chief Judicial Magistrate, Murshidabad in M R case No. 50 of 1976 granting maintenance to the two children of Rs. 50/- each and also costs of Rs. 25/ -.
(2.) THE grand-mother on behalf of the two children made an application for maintenance stating that she is an old lady maintaining her grand children with utmost difficulty and the opposite party is a man of means having 15/16 bighas of landed properties, that the father of two children neglected these two children who are his legitimate children.
(3.) NOTICE to the petitioner was served by affixation as he refused to accept the same, service was made by affixation on the outer door of his house. The petitioner did not appear in the court below inspite of notice on 28. 12. 76 the date for appearance of the petitioner. Thereafter, the learned magistrate fixed 28. 2. 77 for exparte disposal. On 28. 2. 77 the first party also appeared through a lawyer and shewed cause in writing. The learned Magistrate accepted it on payment of Rs. 25/-by him on the next date i. e. on 25. 3. 77 was fixed for evidence of the first party vacating the exparte disposal made previously on that date the petitioner did not appear before the learned Magistrate. Accordingly, upon the evidence adduced by the opposite party the learned Magistrate found that the petitioner had neglected to maintain the two children although he had sufficient means. So, he ordered rs. 50/- to be paid to each of the children. The petitioner has come up against that order and he challenges this order on the ground that the proviso to section 126 Cr. P. Code has not been complied with. The Advocate for the petitioner contends that the learned Magistrate should have recorded his satisfaction that the petitioner was wilfully neglecting to attend court and then alone he could have heard the matter exparte. He having not done so that exparte order is a nullity and therefore an application under the proviso to S. 126 Cr. P. Code within 3 months to set aside that order need not be resorted to.;