Guman Mal Lodha J.
1. This is a petition under Section 482, Code of Criminal Procedure against the order of Additional Sessions Judge No. 2, Jodhpur in criminal revision, by which the order of Munsif Judicial Magistrate, No. 2 Jodhpur in Criminal Case No. 16/77 was upheld.
2. Jainarain. the petitioner, is the husband and Mst. Patasi is wife of Jainarain.
3. The claim of Patasi was that she was married to the petitioner and she was turned out from his house and she is umemployed and unable to maintain herself, therefore, she should be allowed maintenance. The petitioner denied the marriage and pleaded that the marriage was never consumated. The trial court awarded maintenance of Rs. 180/- per month after recording evidence of Patasi and after holding that income of the husband is about 700-800 per month. The petitioner did not lead any evidence in rebuttal of the evidence of non-petitioner, Patasi. Shri M. C. Bhoot, the learned Counsel for the petitioner, has pointed out that the order by the trial court was ex-parte and, therefore, it should have been quashed when the application was moved for the same and sufficient cause was shown. Shri Bhoot further pointed out that, the revisional court was not justified in holding that since it was considered the case on merits, no prejudice was caused to the petitioner even if the order was passed ex-parte. Shri Bhoot further submitted that on account of submission of Patasi's mother; it is well proved that Patasi has sufficient means to support herself and therefore, she was not entitled to any maintenance.
4. Shri Sohanraj has controverted the above submission of Shri Bhoot. In support of his contention, Shri Bhoot relied upon the judgment of the Supreme Court in Shyam Sunder vs . State of Rajasthan : AIR1980SC768 . In this case, a criminal case was heard by the Jaipur Bench without service of any notice on appellant. The learned Counsel for the State of Rajasthan conceded that as the appeal has been decided without hearing the accused he would not have any objection if the appeal is remitted to the High Court at Jaipur for rehearing in presence of the accused.
5. It would thus be seen that the above case has got no bearing and cannot provide fate of the present case. In the instant case, the circumstances are different.
6. Shri Bhoot further referred to another decision of the Supreme Court in Rafiq and Anr. vs . Munshilal and Anr. : 3SCR509 wherein it was held that a party would sufficient for the naction of counsel. It was noticed that in Supreme Court the cases are entrusted to the counsel and, therefore if the counsel cemmits a mistake, party should not suffer.
7. Again, this principle laid down in this case cannot provide any valuable guidance in the facts and circumstances of the present case.
8. In the instant case, as is clear from the order of the Magistrate, repeated opportunities were given to the petitioner to lead evidence, but he did not avail of it. Again, the revisional Court has considered the entire evidence and the facts afresh and, therefore, no prejudice has been caused to the petitioner by the absence of his counsel before the trial court at the time of the final arguments.
9. In view of this, I am of the opinion that no interference can be made under Section 482, Cr. P.C. on this ground.
10. The second limb of submission made by Shri Bhoot is equally futile. I have gone through the statement of mother of Patasi and, I find that she has given a general statement that the ladies can earn Rs. 6/- per day. However, she has expressly stated that Patasi is not being paid this amount, because she cannot work so much.
11. In Banshilal vs. Smt. Mangi Bai 1981 RLW 477 this court has held that it is not obligatory on the part of the wife to make a mention, that she is unable to maintain and, only on this ground, petition cannot be thrown out.
12. It is not possible to give any finding from the evidence of the wife, that she was earning any particular amount per day. The husband has not chosen to produce any evidence to show, that, or to cross-examine the non-petitioner and her witnesses, to establish that she was earning any particular amount. In view of this, merely on the general admission that Patasi used to work and, that though Patasi could not earn Rs. 6/-per day, but some ladies were being paid that; no deduction can be drawn that Patasi is earning Rs. 6/- per day.
13. I am, therefore, of the opinion that no interference is called for more particularly under Section 482 Cr. P.C., because neither there is any abuse of process of court, nor ends of justice is required any interference in this case.
14. The result is, that this petition under Section 482, Cr. P.C., fails and is hereby dismissed.