DEVI LAL Vs. KANCHANBAI

JUDGEMENT

(1.) THIS application under the Code of Criminal Procedure, 1973 (for short "the Act") is directed against the revisional order maintaining the Magisterial order - whereby a monthly allowance for interim maintenance to the non -applicant, who is the petitioner's wife, has been made.

(2.) THE contention of the petitioner's learned counsel is that the order granting interim maintenance in the proceedings under Section 125 of the Code is, in the circumstances, vitiated. He urges that in the beginning, the proceedings had continued ex parte and the evidence of the non -applicant Kanchanbai was recorded. But the ex parte order having been later set aside, that evidence, in the face of the affidavit filed by him to the effect that he is ready and willing to maintain her, could not be acted upon for making the impugned order.

(3.) IN support of his submission, the learned counsel has placed reliance on the decision in Suresh Singh (1986/2/M.P.W.N. 147) and Savitribai v. Govind Singh (1985 M.P.L.J. 663). In the first mentioned decision, it has been pointed out that where the affidavit filed in support of an application is not controverted, the statement on oath therein made should be accepted. In the other decision, which is by the Supreme Court, observing that there is no room for the apprehension that the recognition of the power to grant interim maintenance would lead to such orders in large number of cases, where the liability to pay maintenance may not exist, it has been pointed out that affidavit may be treated as supplying prima facie proof of the case of the applicant.