D.A. Desai, J.
1. This matter comes before this Court upon a reference made by the learned Sessions Judge. Bhavnagar, under Section 438 of the Criminal Procedure Code, recommending that the order made by the learned Judicial Magistrate. First Class, Bhavnagar, on February 22. 1971. in Miscellaneous Criminal Application No. 76 of 1970 be set aside and the learned Judicial Magistrate be directed to hear the objections taken up by the husband in his memo of objection. A few relevant facts may be stated. Bai Kasiben Bhana-bhai, wife of Mehta Popatlal Bhanushanker, made an application, under Section 488 of the Criminal Procedure Code, in the Court of the Judicial Magistrate, First Class, Bhavnagar, being Criminal Miscellaneous Application No. 52 of 1969, alleging that Mehta Popatlal Bhanushanker was her husband and that he has neglected or refused to maintain her and a direction be given that her husband should pay her an amount of Rs. 40/- per month by way of maintenance. An order to that effect was made on October 3. 1969. It appears that the husband did not appear at the hearing of the application and the proceeding was disposed of ex parte. As the husband failed to pay the amount for a period of 4 months, commencing from April 3. 1970, the wife filed Miscellaneous Criminal Application No. 76 of 1970 praying for executing the order and issuing a warrant to recover an amount of Rs. 160/-. This application was made on August 4, 1970. A notice of the application was served upon the husband. In response to the notice, he appeared and filed a statement contending that, even though he was not served in the main maintenance application, the order was made ex parte, which is illegal and further that the woman, claiming to be his wife, was not his wife but a mistress and that the Court has no jurisdiction to make an order under Section 488 of the Criminal Procedure Code. The learned Judicial Magistrate rejected the application observing that this executing Court cannot go behind the order and directed the husband to pay the amount of arrears within one month, failing which necessary warrant would be issued. The husband preferred Criminal Revision Application No. 30 of 1971 in the Court of the Sessions Judge, Bhavnagar, The learned Sessions Judge was of the opinion-that the learned Judicial Magistrate was in error in rejecting the contention raised by the husband and. therefore the order rejecting the objection deserves to be set aside. Accordingly, the learned Sessions Judge referred the case to this Court for passing appropriate order in the matter.
2. In my opinion, the reference must be rejected. Kashiben filed an application, Under Section 488 of the Criminal Procedure Code, alleging that the opponent therein mentioned, namely Mehta Popatlal Bhanushanker. was her husband and that he has either neglected or refused to maintain her and that he be directed to pay a' certain amount per month by way of maintenance. A notice of the application was directed to be served upon the husband. Ultimately, the Court passed an ex parte order against the husband. The husband did not take any step to get that order set aside, even after he came to know about it. Instead, when the wife made an application for executing the order, he resisted the same by saying that the original ex parte order was illegal and the woman, claiming the status of wife, was a mistress. Such an objection could not have been permitted to be agitated in an execution application. If an ex parte order is made against the husband, in an application under Section 488 of the Criminal Procedure Code, the law provides a procedure for getting such orders vacated at the instance of the husband, Sub-section (6) of Section 488 of the Criminal Procedure Code is material for this purpose. It reads as under:
(6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded ift the manner prescribed in the case of summons-cases:Provided that if the Magistrate is satisfied that he is wilfully avoiding service, or wilfully neglects to attend the Court the Magistrate may proceed to hear and determine the case ex parte. Any orders so made may be set aside for good cause shown on application made within three months from the date thereof.
It would thus appear that, when an application under Section 488 of the Criminal Procedure Code is made, and a notice is sought to be served upon the husband or the father of the illegitimate child, if the Magistrate is satisfied that he is wilfully avoiding service or wilfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. It is implicit in the language of the proviso that the Court is not precluded from proceeding ex parte if the husband is served and fails to attend, or in a given case, the husband wilfully avoids service, which would mean that the service could not be effected. In a proceeding under Section 488 on either of the two conditions being satisfied, namely that the husband is wilfully avoiding service or he is wilfully neglecting to attend the Court, the Court can proceed ex parte. It is implicit in the first condition that the service is sought to be effected but the attempt is defeated by something being done by the husband and it is equally implicit in the second condition that he is already served but fails to attend the Court. It is not clear from the record as is placed before me or the one placed before the learned Sessions Judge as to on the satisfaction of which of the two conditions the learned Magistrate proceeded ex parte. In fact that aspect cannot be examined by the Court in a proceeding for execution of the order, because the proviso to Sub-section (61 shows as to how such an ex parte order can be got vacated.
3. If the Court has decided to proceed ex parte in a proceeding under Section 488 of the Criminal Procedure Code, and, in fact. oroeeeds ex parte and passes an order, such an order may be set aside, at the instance of the husband, for good cause shown, by an application made within three months from the date of the order. Therefore, the scheme of Sub-section (6) of Section 488 clearly indicates that, if a proceeding is disposed of ex parte, and, if at the time of the execution of the order, the husband comes to know Itiat an ex parte order has been obtained against him, the proper legal course open to him is to appear in the main maintenance application and apply to the Court for setting aside the ex parte order, on the ground, either that he did not wilfully avoid service or did not wilfully neglect to attend the Court. If the cause shown by the husband is good or sufficient, the Court can set aside the ex parte order and permit the husband to appear and contest the proceeding.
4. A question may be raised as to what would happen, if the husband appears and raises a contention that the ex parte order was bad in the proceeding for execution of the order. The executing Court cannot go behind the order. The executing Court has to take the order as it stands. It would be open to the husband to appear in the main proceeding and take steps for getting the ex parte order set aside, and it would be open to that Court tb stay the execution, if it is satisfied that it would be in the interest of 'justice to do so. But certainly and unquestionably the executing Court cannot permit the husband to question the original order or the proceeding of the main maintenance application, unless it is contended that the order is a nullity. Such1 a contention is not put forward. When that contention is not put forward, the learned Magistrate was right in reaching the conclusion that he has reached. With respect the learned Sessions Judge was in error in calling for the proceeding of the main maintenance application and basing his conclusion, merely on the absence of the duplicate copy of the summons. The learned Sessions Judge thereby re-opened the proceedings, which were not before him. Incidentally, the learned Sessions-Judge, if his recommendation were to be accepted, would expect a direction to be given to the learned Magistrate to indirectly re-open the proceedings, which have culminated in the order.
5. Mr. Trivedi made it clear that his client would move in the main petition. This was the only point on which Mr. Trivedi supported the reference. The reference, with respect, is incompetent and cannot be accepted. Rule is, accordingly, discharged.