STATE OF MYSORE Vs. GHOUSUDDIN

JUDGEMENT

(1.) This is a reference made by the Sessions Judge, Bidar, against an order passed under S.488 CrlPC. by the First Class Magistrate, Bidar in Crl. Case No.81 of 1967.

(2.) The few facts necessary for a decision in this case are: that responident-2 wife, filed an application against respondent-1 her husband under S.488 CrlPC. claiming maintenance from him. The husband appeared through an Advocate and filed objections. Ultimately the wife came to be examined and cross-examined. Her cross-examination was completed on 21-7-1970. The order sheet of the date 21-7-1970 reads as follows "Parties are present, cross-examination of PW.1 and PW.2, PW-3 and PW.4's statement recorded. Petitioner's evidence. heard. Case adjourned for defence evidence call on 11-8-1970, On 11-8-1970, the Counsel appearing on behalf of the 'husband reported no instructions, and the case was adjourned to 17-8-1970 for arguments. On 17-8-1970 also it was adjourned for arguments to 24-8-1970: On 24-8-1-970 the arguments on behalf of the wife were heard, and orders were pronounced on 31-8-1970. By this order, the Magistrate has allowed the application of the wife and fixed the quantum of maintenance at Rs.40 per month.

(3.) It was as against this order that the husband filed a revision in CrlRP. No. 18 of 1970 before the Sessions Court on 25-11-1970. On hearing both sides, the learned Sessions Judge has opined that the Magistrate, 'while passing the order in question, has failed to comply with, the provisions of sub-sec. (6) of S. 488 CrPC. and the proviso thereunder. The reasoning of the learned Sessions Judge is that on 21-7-1970 the husband was not present and only his Advocate was present and as. such the evidence of PWs.1 to 4 was recorded in the absence of the husband and, therefore the mandatory provisions of sub-sec. (6) of S.488 CrlPC. laying down that the evidence should be taken in the presence of the husband or father, have been offended. The further reasoning of the learned Sessions Judge is that the Magistrate has, on 11-8-1970, on the Advocate for the husband reporting no instructions, not recorded that that he was satisfied that the husband was wilfully avoiding service or wilfully neglecting to attend the Court, and, therefore, it was necessary to hear the case ex parte. It is his opinion that because of this ground the order passed by the Magistrate is vulnerable.