ARUNA ALIAS SUVARNA Vs. MARLINGAAPPA

JUDGEMENT

(1.) THE short point for consideration in this petition filed under Section 397 R/w Section 401 of Cr. P.C. is whether the evidence by way of affidavit is permissible in respect of maintenance proceedings initiated under Section 125 of the Cr.P.C.

(2.) THE facts in brief are that the petitioners herein claiming to be wife and daughter respectively of the respondent, filed a petition under Section 125 of the Cr. P. C. seeking maintenance and the Trial Court by its order dated 23.2.2008 allowed the maintenance petition by awarding Rs. 500- as maintenance per month to each, of the two petitioners. Aggrieved by the said order the respondent-husband preferred a criminal revision petition before the learned Sessions Judge in Crl.R.P No.37/2008 arid the main contention put forwarded was that the Trial Court was in error in accepting the affidavits filed by the respective parties and learned Sessions Judge consequently allowed the criminal revision petition by holding that the procedure followed by the learned Magistrate was unknown to law and it could not have permitted the parties to file affidavits and consequently the matter was remanded to the Trial Court for disposal in accordance with law after recording evidence of the parties. It is this order, which is called in question by the petitioners before this Court.

(3.) THE question therefore that requires to be answered is that whether Section 126 of Cr.P.C, permits evidence by way of affidavit or not. It is therefore, necessary to refer to the very provision contained in the said Section, which reads as under; "All evidence to 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 wilfully avoiding service, or wilfully 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.