C. Jagannadhacharyulu, J.C.
1. This is a reference made by the Additional Sessions Judge, Manipur under Section 435 Cr.P.C. to set aside the order of the Sub Divisional Magistrate, Churachandpur in Criminal Misc. Case 4-C of 1964 dated 23.6.1965 directing the revision petitioner to pay monthly maintenance at the rate of Rs. 8 to a female child, viz. illegitimate daughter of the respondent herein.
2. The respondent filed Criminal Misc. Case 4-C of 1964 under Section 488 Cr.P.C. for recovery of maintenance. The Magistrate examined witnesses and concluded that the respondent is not the married wife of the petitioner herein and, therefore, disallowed maintenance. But, he awarded maintenance in favour of her illegitimate child born to her by the petitioner. The matter was carried in revision to the Additional Sessions Judge, Manipur, who made the reference in question to this Court. The respondent remained ex parte.
3. A perusal of the records shows that the Magistrate did not follow the summons 'procedure as laid down by Section 488, Sub-section (6) of Cr.P.C. But, he followed summary trial procedure. On this ground the proceedings are liable to be quashed, since the defect is not a curable one.
4. The learned Counsel for the petitioner, however, wanted to make out further grounds to set aside the order. Firstly, he urged that the Magistrate did not give any finding that the child is unable to maintain herself. The age of the child appears to be about 6/7 years. So, she is unable to maintain herself. There is no substance in this contention. His second contention is that there was an arbitration by the village elders and that the matter was finally settled as between the parties. But, the learned Sub-Divisional Magistrate did not advert to this case. In any view, as the proceedings are being quashed, this question of fact need not be decided now. If the matter comes up again in a proper proceeding, then this has to be considered.
5. In the result, the reference is accepted and the order of the lower Court as against the petitioner is set aside.