JUDGMENT
S.R. Bhargava, J.
1. This revision, under Section 397 Cr. P.C., has been finally heard at admission stage after notice to the parties and is being disposed of finally at admission stage.
2 Revisionist Raja Ram and opposite party no. 1 Smt. Jain Mala Jain are husband and wife. They were married in 1967. Wedlock was blessed with three children who are now grown up. Both of them were blessed by God in the sense that they were born in high caste families. It is borne out that revisionist Raja Ram is blessed with education. He is Deputy Director Council of Mines Safety and is posted at Chiabasa, district Dhanbad (Bihar). Opposite party no 1 the wife is blessed in the sense that she is from a high caste family of district Muzaffarnagar in U.P. But the couple is not so blessed in family life.
Their relations have been estraged since long. In 1981 revisionists Raja Ram filed divorce petition at Dhanbad. It is said that in that petition civil Court awarded interim maintenance of Rs. 450/- per month to the wife. It is further alleged that the divorce petition is still pending. In 1987 wife filed application for maintenance under Section 125 Cr. P.C. at Muzaffarnagar. On 29th January, 1988 revisionist filed objections. It appears that he did not appear personally before the Magistrate on subsequent dates. But his counsel took adjournments and at one stage also got an exparte order set aside. On 11th August, 1988 Magistrate recorded exparte evidence. On 22nd August, 1988 Magistrate passed exparte order awarding maintenance of Rs. 500/- per month to the wife and Rs. 500/- per month to each of the children.
3. Then within limitation of three months husband applied for setting aside of exparte order under the proviso of Section 126(2) Cr. P.C. His case was that he was not served with summons. After having knowledge of the maintenance application he filed objections. But in his presence no date was fixed. He instructed his counsel to intimate the date fixed. But his counsel did not intimate him the date fixed. When he came to know of the exparte order
on account of realisation from his pay he applied for setting aside of exparte order.
4. On behalf of the wife tin’s application was resisted. It was asserted that the husband was intentionally keeping out of the Court for delaying the maintenance proceedings. Both of the parties filed affidavits. It is significant to note that clerk of the counsel of the husband, through whom objections were filed, filed affidavit asserting that he sent intimation about dates of hearing to the husband from time to time. Learned Magistrate held that the husband was
unable to prove justifiable cause. Hence he dismissed the application of the husband for setting aside of the exparte order.
5. Against this, husband has come in this revision to this Court.
6. It is important to say that in the proviso of Section 136(2) Cr. P C Magistrate has been conferred the power of setting aside of exparte order of maintenance on grounds of want of service or good cause for the absence of the husband. Once the husband puts in appearance and files objections the first ground for setting aside of exparte order, namely, want of service of summons pails out into insignificance. Then only second ground which is “good cause” can be available to the “husband for setting aside of exparte order of maintenance. “Good Cause” and ‘sufficient cause’ have more or less the same meaning. For both of them the applicant must prove justified cause The only difference between the two is that ‘good cause’ should be more liberally interpreted. But where the finding of the Magistrate is based on discussion of evidence before him, his finding of absence of good cause is a matter of his discretion which cannot be disturbed in revision. It was urged on behalf of the revisionist that he was 1800 kilometres away from Muzaffarnagar and he did not receive any information of the date fixed. It was further urged on behalf of the revisionist that the clerk of his counsel colluded with the wife and his affidavit is liable to be discarded from evidence. A counsel and his clerk are duty bound to place the truth before the Court. Merely because clerk of a counsel has filed affidavit explaining his own conduct vis-a-vis the client there can be no presumption that he colluded with the other side. I am of the view
that the finding based on discussion of admissible evidence which cannot be disturbed in revision.
7. Then on behalf of the husband two facts were brought to notice of this Court, namely, (1) that in divorce petition the wife has been awarded interim maintenance of Rs. 450/- per month; (2) that the children have attained majority and each of them is above 18 years of age. Both these facts are not relevant to an application for setting aside of exparte order of maintenance which has to be decided only on the basis of presence or absence of good cause. Facts touching the grounds on which maintenance can be awarded are not relevant to an application for setting aside of exparte order. At any rate, it may be mentioned that any order of the civil Court regarding maintenance overrides the order of maintenance under Section 125 Cr. P.C. If there is already an interim order for maintenance the Civil Court the maintenance paid thereunder has to be taken into account in proceedings under Section 125 Cr. P.C. or in realisation proceedings if there is a maintenance order under Section 125 Cr. P.C. also. In the instant case there is a .maintenance order. There is an existing maintenance order under Section 125 Cr. P.C. it is only in realisation proceedings that any payment made under the order of civil Court for interim maintenance has to be taken into account. So far as the question of majority of the children is concerned that can be a ground for cancellation of maintenance order passed in their favour. If the husband so chooses be can filed an application under Section 127 Cr. P.C. for cancellation of the maintenance order in favour of the children on the ground that they have attained majority. In cancellation proceedings the Magistrate can even pass order of cancellation with retrospective effect from the date each of the children attained majority.
8. In result, this revision has no force and is hereby dismissed.
9. Order dated 6th June, 1990 staying operation of orders dated 20.3.1990 and 22.8.1988 passed by the Magistrate is vacated.