MOHD YUSSUF Vs. HAMIDA BEGUM

JUDGEMENT

(1.) THIS revision is directed against the order dated 14 -4 -1978 of the Sessions Judge, Badarwah, dismissing the revision petition of the petitioner against the order of the Judicial Magistrate, Kishtwar, dated 13 -5 -1976,

(2.) IN proceedings initiated under Section 488 Cr. P. C. by the respondent, herein, against the petitioner, the learned Magistrate made an order granting Rs. 80/ - per month as maintenance allowance in favour of the respondent wife. This order was made on 14 -ll -1976 and was to be operative from the date of the application viz 6 -2 -1973. An application for execution was filed on 1 -3 -1976 for the recovery of the arrears of maintenance. The petitioner appeared before the executing court and objected to the execution proceedings on the ground that the evidence in the main application was recorded in his absence, which was illegal and, therefore, the order granting maintenance allowance to the wife was also, therefore, not according to law and was also without jurisdiction. The learned Magistrate over -ruled the objection by observing that he could not sit in judgment on order made in the application for execution. He could not go behind the order. Against the order of the magistrate, a revision was taken before the Sessions Judge, who, as observed above, dismissed the same.

(3.) BEFORE me it has been contended on behalf of the petitioner that it is a mandatory requirement of law under Section 488 Cr. P. C. that the evidence in the case should be recorded in presence of the husband. It is only when the presence of the husband is dispensed with and he is represented by a pleader then in that case the evidence can be recorded in presence of the husband. In the instant case the evidence in the main application was recorded not in presence of the husband but in presence of his counsel Mere presence of the counsel could not cure the defect. In view of this, as the evidence was not recorded in conformity with Sec. 488 (6) Cr. P. C. therefore, the subsequent proceedings taken in the case and the final order made are bad in law and without jurisdiction. It is also contended that the petitioner never married the respondent nor did she ever live with him as his husband and wife. As a matter of fact the petitioner had no knowledge of the proceedings initiated against him. He was away in the Police service and the proceedings were taken against him in his absence and a wrong order for maintenance allowance was passed.