1. An order of maintenance passed by the learned Additional Chief Metropolitan Magistrate, 24th Court, Borivali, Bombay, on 12th of May 1981 is challenged in this petition under Article 227 of the Constitution of India. The petitioner was the opponent in the application which was tried as Case No. 135/N of 1980 filed by the respondent for maintenance under Section 125 of the Code of Criminal Procedure, 1973.
2. There were several dates on which the case had been adjourned from time to time. On 6th of May 1981 the respondent filed an affidavit in which she put forth her case including the purported ill-treatment given to her by the petitioner and the estimated income of the petitioner. She prayed in the said affidavit that the petitioner be ordered to pay Rs. 500/- per month, which is the maximum payable under Section 125 of the Criminal P.C. Relying upon this affidavit, the learned Magistrate passed the order referred to above by which he directed the petitioner to pay Rs. 500/- per month from the date of the application to the respondent. An order was also made for the payment of Rs. 200/- towards the cost of the proceedings. The aforesaid order is now challenged in this petition.
3. Mr. Zaveri, the learned Advocate appearing in support of the petition, has invited my attention to the averments in the petition wherein it has been mentioned that the Advocate who had been entrusted with this case was not diligent enough to keep the petitioner informed of the various dates. No particularly fixed date had been given for recording of the evidence and, therefore, the petitioner remained absent on the date on which the affidavit was taken on record and on the date on which the order was passed. It is the case of the petitioner that he came to know about the order passed only after distress warrant was issued against him. If this were the only ground on which the petitioner had raised his grievance against the order of the learned Magistrate, I would have been loathe to interfere with the same.
4. However, Mr. Zaveri has contended further that the procedure followed by the learned Magistrate is contrary to the one prescribed by the Code, especially in relation to proceedings to be held under Section 125. For reasons which follow and after hearing Mr. Doshi for the respondent, I am inclined to accept this contention of Mr. Zaveri.
5. Section 125 of the Code mentions that whenever a person having sufficient means neglects or refuses to maintain the persons mentioned in Cls. (a) to (d) of sub-section (1) of S. 125, a Magistrate of the First Class, upon proof of such neglect or refusal, order such person to pay monthly maintenance at the rate not exceeding Rs. 500/-. Section 126 of the Code prescribe the procedure which is to be followed. In particular, sub-section (2) of S. 126 says that all evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made. It is, however, further provided that if the Magistrate is satisfied that the person against whom an order for maintenance is proposed to be made is wilfully avoiding service or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. However, this does not mean that the Magistrate shall pass an order without recording evidence as required in the main part of sub-section (2) of S. 126. The proviso only dispenses with the necessity of recording evidence in the presence of the other side if that other side is wilfully avoiding service or wilfully neglecting to attend the Court. Section 126(2) itself provides that all the evidence shall be recorded in the manner prescribed for summons cases.
6. Chapter XX of the Code prescribes the procedure to be followed in summons cases. Section 254 in the said Chapter lays down that if the Magistrate does not convict the accused, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution and also to hear the accused and take all such evidence as he produces in his defence. The recording of evidence, therefore, seems to be mandatory even when the opponent in proceedings u/s. 125 is avoiding service or is wilfully neglecting to attend the Court. Section 296 of the Code, which permits the Court to receive the affidavit of any person whose evidence is of a formal character, can not obviously apply when under Section 125 of the Code question relating to the neglect or cruelly on the part of the respondent, the income of the respondent and the quantum of maintenance to be given to the petitioner are to be decided. On this limited point, therefore, this petition must succeed and the order of the learned magistrate will have to be set aside.
7. However, I have been informed that pending this petition the petitioner has deposited certain sums in the Court of the learned Magistrate. I direct that a sum of Rs. 2,500/- of the same shall be paid over to the respondent, without prejudice to the rights and contentions of the petitioner in the proceedings which will now be taken up by the learned trial Magistrate. The said amount of Rs. 2,500/- shall not be refundable even if the respondent-wife fails in her application. However, if an order for maintenance is passed in her favour, then the said amount of Rs. 2,500/- will be adjusted towards the amount that will become payable to the respondent.
8. In the result, this petition is allowed. The order dt. 12th of May 1981 passed by the learned Additional Chief Metropolitan Magistrate, 24th Court, Borivali, Bombay, in Case No. 135/8 of 1980 is set aside. The said case is restored to file of the learned trial Magistrate who will dispose it of in the light of the observations made above.
9. Petition allowed.