HON’BLE SRI JUSTICE B. SESHASAYANA REDDY Crl.R.C.No. 1480 of 2009 O R D E R: This Revision is directed against the order, dated 05.08.2009 passed in Crl.M.P.No. 229 of 2009 in F.C.M.C.No. 16 of 2008 on the file of the Family Court at Srikakulam, whereby and whereunder, the learned Judge of the Family Court dismissed the Application filed by the petitioner under Section 126(2) of the Code of Criminal Procedure. The respondents herein are wife and son of the petitioner. They filed F.C.M.C. No. 16 of 2008 under Section 125 of the Code of Criminal Procedure, 1973, claiming maintenance at the rate of Rs.3,000/- and Rs.2,000/- p.m. respectively. The petitioner herein entered appearance and filed counter in the said M.C. and subsequently, did not participate in the proceedings. Thereupon, an ex parte order came to be passed on 17.12.2008, granting monthly maintenance at the rate of Rs.1500/- to the wife and Rs.500/- to the son. The petitioner-husband filed Crl.M.P. No. 229 of 2009 under Proviso to Section 126(2) of the Code of Criminal Procedure to set aside the ex parte order dated 17.12.2008 passed in F.C.M.C. No. 16 of 2008. He took the plea that his absence before the Court on 12.12.2008 was not intentional. The wife and son resisted the said Application. The learned Judge formulated the following points for consideration: 1) Whether the Criminal Miscellaneous Petition is not barred by limitation as prescribed under the proviso to Section 126(2) of the Code of Criminal Procedure? 2) Whether there are just and reasonable grounds to grant the prayer of the petitioner in this petition? The learned Judge of the Family Court, on hearing the counsel appearing for the parties and on considering the material brought on record, came to the conclusion that the petitioner failed to file the Application within the period allowed under the Proviso to Section 126(2) of the Code of Criminal Procedure and thereby, proceeded to dismiss the Petition, by order dated 05.08.2009. The said order is assailed in this Revision. Heard learned counsel appearing for the petitioner and perused the judgment impugned in the Revision. Learned counsel appearing for the petitioner submits that the petitioner is always prepared to receive the respondents and it is the respondents, who are staying away and therefore, he is not liable to pay any maintenance. The question of entitlement of the respondents herein to claim maintenance is not required to be examined in this Revision. The point for consideration is whether the Petition filed by the petitioner to set aside the ex parte decree is within the period stipulated under Proviso to Section 126(2) of the Code of Criminal Procedure. Indisputably, the petitioner-husband entered appearance in F.C.M.C. No. 16 of 2008 and filed counter and subsequently, he did not choose to participate in the proceedings and thereupon, an ex parte order came to be passed on 17.12.2008. Under Proviso to Section 126(2) of the Code of Criminal Procedure, a person, who suffers ex parte order can file an Application within three months from the date thereof. Proviso to Section 126(2) of the Code of Criminal Procedure, reads as hereunder: “ Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is willfully avoiding service or willfully 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.” The learned Judge of the Family Court, on considering material placed on record, came to the conclusion that the petitioner was aware of ex parte order passed against him, much prior to his filing Crl.M.P. No. 229 of 2009. The observation made by the learned Judge of the Family Court reads as hereunder: “ In the F.C.M.C. 16 of 2008 this petitioner was having an Advocate but even that learned Advocate did not choose to appear before this Court and intimate the reason for the absence of this petitioner right from 17.11.2008 till he is set ex parte on 12.12.2008. Even though this petitioner was set ex parte on 12.12.2008 the F.C.M.C.16 of 2008 was posted on 16.12.2008 for recording the evidence on the side of the petitioners and again on 17.12.2008. Even on those days either this petitioner or his learned Advocate did not choose to appear before this Court. The petitioners in F.C.M.C.16 of 2008 filed Crl.M.P. 98 of 2009 under Section 125(2) of Cr.P.C. for enforcing the award of maintenance granted by this Court against respondent in the said F.C.M.C. who is no other than this petitioner. In that Crl.M.P. 98 of 2009 when the notice was sent to this petitioner through Court and by registered post acknowledgment due, the notice sent by registered post acknowledgment due was returned unserved on 22.06.2009 with postal endorsement that this petitioner was on camp for the last one week prior to 19.06.2009. This postal endorsement which has got to be presumed as providing the correct information is disproving the so called ground of this petitioner suffering from jaundice. But on 14.07.2009 this petitioner as respondent in Crl.M.P. 98 of 2009 appeared before this Court and prayed for time to make payment of the area maintenance amount and time was granted to him till 30.07.2009. Even on 14.07.2009 this petitioner did not choose to move his little finger against the ex parte order passed against him in F.C.M.C. 16 of 2008 on 12.12.2008 or on 17.12.2008 and on the other hand, he prayed for time to make payment of the arrear maintenance amount. But on 30.07.2009 this petitioner remained absent and again on 31.07.2009 he appeared before the Court and filed this Criminal Miscellaneous Petition. The reason for the absence of this petitioner on 12.12.008 in F.C.M.C. 16 of 2008 is thus proved to be an invented reason without there being any iota of truth. Added to this the Vakalat of this petitioner was given to his learned Advocates on 14.07.2009 but he came forward with this Criminal Miscellaneous Petition so casually and callously on 31.07.2009, that too without the application under Section 5 of the Limitation Act, 1963.” Though the petitioner has pleaded that he fell ill during the relevant period, he failed to place on record any evidence, either ocular or documentary, to substantiate the same. I do not see any valid ground to interfere with the order impugned in the revision in exercise of powers under Sections 397 and 401 Cr.P.C. Hence, the revision is dismissed at the admission stage. ------------------------------------ (B. SESHASAYANA REDDY, J) 9th September 2009 ksld