IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.1311 of 2007 AJAY GOSWAMI SON OF SHRI KAPIL GOSWAMI R/O- VILLAGE MUNGIYA, P.S.- TANDAWA, DISTRICT- AURANGABAD. AT PRESENT AJAY GOSWAMI C/O- BISHNU PRASAD GUPTA, RADHA MARKET HARIHARGANJ PALAMAU, JHARKHAND. Versus 1. THE STATE OF BIHAR 2. MALATI DEVI, WIFE OF SHRI AJAY GOSWAMI, R/O- VILLAGE MUNGIYA, P.S.- TANDAWA, DISTRICT- AURANGABAD. For the petitioner : Mr. Yogendra Kumar Singh, Advocate For the O.P. No. 2 : Mr. Rajesh Kumar Mishra, Advocate For the State : Mr. R.B. Roy „Raman‟, APP 5 16.12.2010 The only grievance raised in this application is that the order impugned dated 20.1.2006 fixing the maintenance under a proceeding initiated under Section 125 of the Code of Criminal Procedure(for short the Code) was passed ex-parte. Learned counsel for the opposite party, however, controverts the aforesaid stand. Section 126 of the Code reads as under:- “Procedure- (1) Proceedings under section 125 may be taken against any person in any district- (a) where he is, or (b) where he or his wife resides, or (c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child (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 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 - 2 - Magistrate may think just and proper. (3) The Court in dealing with applications under section 125 shall have power to make order as to costs as may be just.” It is seen thus that the Code itself provides an avenue to the petitioner to seek remedy before the said Court itself after satisfying the Court that the notice was not duly served on him preventing him from appearing in the proceeding and thereby allowing the Court to proceed to dispose of the case finally. Such application, as per the provision, has to be filed within three months. However, having regard to the facts appearing from the record and after hearing both the sides, this Court disposes of the application by the following order: Let the petitioner approach the Court below ( Sri Prakash Paswan, Judicial Magistrate, 1st Class, Aurangabad) for setting aside the ex-parte order within a period of five weeks from today. In the event, such an application is filed within the aforesaid time, along with a copy of this order, the Trial Court shall consider the same on its own merit and dispose of the same in accordance with law. pkj (Kishore K. Mandal, J)