S.K. Ghose, J.
1. The petitioner in this Rule has been directed by the learned Additional Presidency Magistrate of Calcutta in a proceeding under Section 488, Criminal P. C, to pay to the opposite party his wife a sum of Rs. 100 as maintenance. The Rule was issued on two grounds, first, that the whole trial was vitiated by the non-examination of the petitioner under Section 342, Criminal P.C., and secondly, that the amount of maintenance awarded in the case was excessive.
2. On the first point it is contended on the authority of a ease decided by the Lahore High Court (Mr. Demello v. Mrs, Demello, 27 Cr. L. J. 1,000) that Section 842, Criminal P. C, is applicable to maintenance proceedings under Section 488, Criminal P.C. On the other side there is a decision of this Court in 25 Cr. L. J. 1091, Bachai Kalwar v. Jamuna Kalwar, In that case the point of law was not actually decided, but it was held that where a person had given evidence on his own behalf it was not necessary to further examine him under Section 342. In the present ease no doubt the petitioner was not examined, but it appears that on the dates subsequent to the close of the prosecution evidence he either applied for adjournment or he failed to appear, and the matter was decided ex parte as provided by Sub-section (6), Section 488. Under these circumstances there is no necessity to send the case back on the ground that the petitioner was not examined.
3. The second point, namely, as to whether the amount of maintenance actually awarded had been excessive requires further investigation. The notice served on the petitioner mentioned Rs. 80 as the amount of maintenance. It was increased to Rs. 100 apparently on the ground that the petitioner's daughter was living with his wife. This fact is now denied by the petitioner. It was also alleged that the petitioner is a Government servant drawing a salary of Rs. 250 per month. But
4. I am informed that thi3 is subject to certain deductions and this should be taken into account. Under the circumstances of this case I think that it is fair that the petitioner should have another opportunity of having the amount of maintenance determined in his presence. I therefore set aside the order of maintenance as made on 6th August 1931 and direct that the question of the amount of maintenance be reheard. The Rule is made absolute accordingly.