1. This reference arises out of proceedings under Section 488 of the Code of Criminal Procedure. The petitioner Kalika was served with the notice and the first date of hearing fixed was March 22. 1971. He did not attend Court on that date and the case was adjourned to May 18. 1971 for ex parte hearing. Ex parte evidence was recorded on May 22, 1971 and arguments were heard on June 1. 1971. Pronouncement of judgment was, however, adjourned to July 2 and1 on that date and on several subsequent dates Kalika appeared and prayed for the setting aside of the ex parte order and for* permitting him to contest the application on various grounds, including the ground that the opposite party, namely, his wife was living in adultery. The learned Magistrate, however did not set aside the ex parte order and passed a final order allowing maintenance at the rate of Rs. 30/-. per month to the wife. Kalika went up in revision to the court of Session and that court has made a reference in this Court with the recommendation -hat the order passed by the Magistrate be set aside and he should be directed to afford an opportunity to Kalika to contest the matter.
2. Kalika has not appeared in this Court. The reference has been opposed by the learned counsel for the.' opposite party. His argument is that the discretion lay with the Magistrate to set aside the ex parte order or not and revisional court should not interfere with the exercise of such discretion. Section 488 (6) provides for the contingency in which there is an order for ex parte proceedings. It says that if the Magistrate is satisfied that the husband or the father had wilfully neglected to attend the court he may proceed to hear and determine the case ex parte. There is no question in a case under Section 488 of existence or otherwise of what is technically known in civil proceedings as 'sufficient cause'. The words used are significant, namely 'wilful negligence'. Now. what amounts to wilful negligence is a question of law though it has to be decided on the basis of given facts. Wilful means designedly, deliberately of set purpose, that is to say the mind and the overt action moving together. It is not enough if a man happens to be absent on a particular date because that will only establish his physical absence, but whether that absence is wilful or negligent or wilfully negligent is an inference of to (be drawn from the proved facts and circumstances. The petitioner offered am explanation before the magistrate that he could not attend the hearing on the first date because he had to go outside station in connection with his employment. Merely from this, wilful negligence cannot be inferred unless there was what is called that is to say. deliberate move to absent from court. The evidence was lacking in the case.
3. The result is that the order passed by the learned Magistrate is quashed. The case is sent back to him with the direction that he shall afford an opportunity to the petitioner to file a written statement and put un contest and he will thereafter decide the question. Order accordingly.