GAYITHRI Vs. RAMESH ALIAS SIDDARAMESH

JUDGEMENT

(1.) The appellant herein was the petitioner before the Principal Judge, Family Court, Bangalore, in C Mis. No. 446pf 1990 and being aggrieved by the dismissal of the petition filed by her under Section 125, Cr. P.C has preferred this appeal. The petitioner has pleaded that she was married to the respondent on 13-4-1977 and till August, 1980 they were living without much problem and in that month he married another girl by name Jayataxmi and subsequently used to visit her. Respondent has not been paying anything to her towards her maintenance. He has sufficient means as he is working as a mechanic in B.T.S., Bangalore, and gets salary of Rs. 2,500/- per month. Therefore, she has sought for recovery of separate maintenance of Rs. 500/- per month. The respondent remained absent after service of notice in the trial court and thereafter he was placed ex pane and the case was posted for ex pane evidence by way of affidavit and the petitioner filed an affidavit swearing to the several circumstances pleaded by her in support of the petition and after consideration of the said affidavit, the learned Judge came to the conclusion that no case had been made out for grant of maintenance and accordingly dismissed the petition. It is being aggrieved by this order of dismissal of petition that the petitioner has preferred the present appeal.

(2.) After having heard the learned Advocate for the appellant, we are satisfied that the order of the learned Magistrate should be set aside solely on the ground that the procedure adopted is in direct contravention of Section 126, of the Criminal Procedure Code (for short 'the Code') and in that view of the matter it would not be open to this Court to consider the case, put forward by the appellant, on merits. Though the learned Advocate for the appellant also wanted the order passed by the family court to be set aside, his case was not that there is any lacuna in the procedure adopted by the learned Judge, but that the conclusions arrived at by the learned Judge are not supportable and the said conclusion on facts should be reversed and an order granting maintenance should be passed.

(3.) Sections 125 to 128 of the Code occur in Chapter IX thereof. Section126 (2) of the Code which refers to the way in which the evidence to be recorded in a proceeding under Section 125, reads as hereunder: