J.N. Datta, J.C.
1. This reference has been made by the learned Sessions Judge and arises out of a proceeding under Section 488, Cr. P. Code, in which the learned Magistrate directed the husband (present petitioner) to pay a monthly allowance of Rs. 30/- to his wife (present opposite party).
2. It appears that the husband was not present on most of the hearings, in which evidence was recorded and was represented by his counsel, but there was no application made for dispensation of his personal attendance, nor is there anything else to snow 'that such dispensation was in contemplation and was allowed by the first Court.
The learned Magistrate's attention was drawn to this lacuna in the course of arguments before him, as will appear from the concluding portion of his order but he overruled the contention, by merely stating that from the circumstances of the case, it is apparent taat the second party was allowed to appear through pleader and it has by no means been prejudicial to the second party.
The circumstances on which he relied for this were not pointed out, and in his explanation also he has not stated any. His explanation on this point is that the husband was always represented by a pleader and proper examination and cross-examination of the witnesses was carried out by counsel. Therefore the defect might be a curable defect
3. This is also the main point on which the learned Sessions Judge has made this reference. The fact that the husband was not present on several of the dates on which evidence was recorded and was represented by his counsel was also not disputed beforo me, and the question involved is two fold. First it has to be seen whether in these circumstances it can be deemed that exemption from personal attendance was impliedly granted, and if not, whether the proceedings are vitiated on account of the non-appearance in person of the husband.
4. As already stated no application for exemption from personal appearance was ever filed and no such order granting exemption was ever passed, and it appears that no attention was paid to mis subject, most probably because all concerned proceeded under the impression that it was permissible for a party in such proceedings to appear by pleader.
This impression might have gained ground also due to the fact that although such proceedings are under the Criminal Procedure Code, the parties are not actually in the position of a complainant and an accused person. If the learned Counsel who appeared for the husband was aware of the necessity of personal attendance of his client from the very beginning then there is no reason why he did not apply for the exemption. Similarly if the Court was aware of it then there was nothing to prevent it from raising that question, and at least making an order on it in the order-sheet.
Thus it appears to be certain that the mind of the Court was not directed towards this question until the end, when all the evidence had been taken, and the case had reached the stage of arguments. Even then the Court could have re-opened the case and either insisted on the personal attendance of the husband or granted dispensation or proceeded ex parte.
5. In Rupchand Issardas v. Emperor AIR 1942 Sind 32, in which the circumstances were similar, the learned Judges did not consider them enough for indicating clearly that the question of dispensation of personal attendance was considered by the Magistrate. In Venkatrao v. Rukminibai AIR 1954 Hyd 178 the view taken was, that the direction in Sub-section (6) was peremptory and no presumption or inference could arise in the absence of either an application by the respondent for dispensing with his presence or the order of the Court dispensing such presence.
That was also the view taken in the Sind case, with the addition of the observation that in certain cases it may not be necessary that the Magistrate should pass a forma] order in writing but at least there must be present on the record, circumstance* which indicate clearly that the question of dispensation of personal attendance of the husband or father was considered by the Magistrate.
Thus whatever view is taken, it must be found that in the present case there was a failure to comply with the provisions of Sub-section (6), and I am respectfully of the opinion that the Hyderabad view is more correct for the reason that it is not possible to import any other considerations than those which are permitted by the plain language of that Sub-Section.
6. Both those cases are also authorities on the question that such an irregularity on the part of a Magistrate is not a mere irregularity but an illegality which vitiates the proceedings. While agreeing respectfully with that view, I would like to add that any other view is not permissible, because otherwise ft would have the effect of making the provisions of Sub-section (6) nugatory.
7. Therefore on this point alone the order of the Magistrate is liable to be set aside. Some other points were also urged before me in the course of the arguments, but I should not deal with them, as in the circumstances it would be proper to keep them open and to be first decided by the Court which will have to re-enquire into the matter.
One of such points was, that because it was an admitted fact that the husband had married a second time, his first wife (present opposite party) was entitled to claim separate maintenance irrespective of the question whether neglect or refusal on the part of the husband was proved or not, by virtue of the added provision under the first proviso under Sub-section (3) of Section 488.
On the other side the contention was, that since that provision was added under the clause which governs enforcement of the maintenance order the requirements of Sub-section (1) remained unaffected by it. But as already said I would leave that point for the present to be agitated in the proper way before the Magistrate and to be considered by him.
8. For the above reasons I accept the reference and set aside the order of the Magistrate and direct that the evidence be recorded in accordance with the provisions of Sub-section (6) of Section 488 and a fresh decision given on merits on the application in question.