PRABHULAL JESHANKER Vs. JAYABEN JETHALAL

JUDGEMENT

(1.) the learned Sessions Judge Kutch at Bhuj has made this reference recommending that the exparte order passed by the learned Judicial Magistrate First class Bhuj be set aside and that appropriate orders may be passed.

(2.) The facts giving rise to this reference briefly stated are as under :- The present opponent Jayaben filed an application against her husband Prabhulal claiming maintenance under sec. 488 of the Criminal Procedure Code on 5-5-1970. In her application she stated that she was married with Prabhulal about two years back according to Hindu rites. She alleged that her husband was impotent and in order to conceal that fact from her he began to illtreat her and had driven her out of the house. According to her the monthly income of her husband was Rs. 500.00. She therefore claimed Rs. 150.00 per month as maintenance. At the relevant time Prabhulal was residing at Katihar in Bihar. The summons was sent by registered post. The said packet was returned unserved with the postal endorsement refused . The learned Judicial Magistrate First class Bhuj thereupon passed an order in favour of Jayaben directing Prabhulal to pay Rs. 100.00 per month by way of maintenance. The first instalment became due on 1st October 1970. On 7th January 1971 Prabhulal filed an appli- cation stating that the exparte order of maintenance passed against him was bad in law and was in violation of mandatory provisions of law. According to him he and his wife had last lived together in Katihar in Bihar and so Bihar court had jurisdiction to entertain the petition. He also alleged that the summons was not served on him according to law and that he had no opportunity to attend the court. He stated that he was always ready and willing to accept Jayaben and offered to keep her with him. The learned Magistrate however dismissed the application for setting aside the exparte order passed in favour of Jayaben. Prabhulal thereupon filed a revision application in the sessions court Kutch at Bhuj and the learned Sessions Judge has made the present reference stating that the order passed by the learned Magistrate is not correct.

(3.) Mr. K. N. Mankad learned Advocate for the applicant submitted that in the instant case when the applicant stated on oath that he had not refused the summons sent to him and in fact the summons was not tendered to him there was no reason for the learned Magistrate to reject his application for setting aside the exparte order passed against him. He submitted that there was no provision in the Criminal Procedure Code under secs. 68 to 71 for serving summons by registered post. However assuming for the sake of argument that such summons could be served by registered post the pertinent question remained whether it was duly tendered to the applicant and refused by him. There is no conclusive presumption in this regard. Mere postal endorsement of refusal would not go to show that in fact it was tendered to Prabhulal and was refused by him particularly when Prabhulal stated on oath that such a summons was not tendered to him. There was no reason to doubt his word in the absence of any tangible evidence led by Jayaben. Mr. Mankad also referred to the proviso to sec. 488(6) wherein it is stated that for good cause shown an exparte order may be set aside within three months from the date thereof if an application is made. In the instant case he urged that when the husband had no knowledge about any such application being filed in court an opportunity should be given to him to controvert the allegations made against him by his wife.