Mohamad Yussuf vs Hamida Begum

This revision is directed against the order dated 1441978 if the Sessions Judge, Badarwah, dismissing the revision petition of the petitioner

against the order of the Kishtwar, dated 1351976, Judicial Magistrate,

In proceedings initiated under Section 488 Cr. P. C. by the respondent, herein, against the petitioner, the learned Magistrate made an order

granting Rs. 80/ per month as maintenance allowance in favour of the respondent wife. This order was made on 14111975 and was to be

operative from the date of the application viz 621973. An application for execution was filed on 131976 for the recovery of the arrears of

maintenance. The petitioner appeared before the executing court and objected to the execution proceedings on the ground that the evidence in the

main application was recorded in his absence, which was illegal and, therefore, the order granting maintenance allowance to the wife was also,

therefore, not according to law and was also without jurisdiction. The learned Magistrate overruled the objection by observing that he could not sit

in judgment on order made in the application for execution. He could not go behind the order. Against the order of the magistrate, a revision was

taken before the Sessions Judge, who, as observed above, dismissed the same.

Before me it has been contended on behalf of the petitioner that it is a mandatory requirement of law under Section 488 Cr. P. C. that the

evidence in the case should be recorded in presence of the husband It is only when the presence of the husband is dispensed with and he is

represented by a pleader then in that case the evidence can be recorded in presence of the husband. In the instant case the evidence in the main

application was recorded not in presence of the husband but in presence of his counsel Mere presence of the counsel could not cure the defect. In

view of this, as the evidence was not recorded in conformity with Sec. 488 (6) Cr. P. C. therefore, the subsequent proceedings taken in the case

and the final order made are bad in law and without jurisdiction. It is also contended that the petitioner never married the respondent nor did she

ever live with him as his husband and wife. As a matter of fact the petitioner had no knowledge of the proceedings initiated against him. He was

away in the Police service and the proceedings were taken against him in his absence and a wrong order for maintenance allowance was passed.

I have heard learned counsel for the parties and have also gone through the record.

It appears that the order granting maintenance in favour of the wife was made on 14111975. No revision was filed against this order. That order

has become final. While execution proceedings for the recovery of allowance of maintenance were taken out, the petitioner appeared before the

magistrate and objected to the maintainability of the execution proceedings on the ground that correct procedure under Section 488 Cr. P. C. had

not been followed and that the evidence had been recorded in his absence. This objection was held by the executing court as untenable and it

directed the petitioner to deposit the allowance of maintenance in the court Against this order dated 126 1976, the petitioner went up in revision

before the Sessions Judge, Badarwah. In fact this is the order which is the subject 'matter of revision before this court.

At the very outset I must observe that as the order dated 14111975 of the magistrate granting maintenance has become final, as no revision was

filed against that order, therefore, it is doubtful whether a matter that has got bearing on the passing of the order can be challenged in this revision

petition. The questions whether : the magistrate followed the correct procedure in the application, whether or not he should have passed an order,

of maintenance in the application, cannot be raised in this revision petition which is against the order of recovery of the allowance of maintenance ;

It is too ""late in the day for the petitioner to agitate the legality and validity of the final order of the magistrate which was made as early as in

November 1975. Even assuming that such a question can be raised in the revision petition, on the ground that it affects the jurisdiction of the

magistrate to have made the order, I do not think that the absence of the husband while the evidence was recorded would vitiate the proceedings

when his counsel was present and he was authorised to appear by the petitioner in the court. It has not been shown in what way this has caused

miscarriage of justice or has materially prejudiced the case of the petitioner. There are a number of decisions which have concluded the matter by

observing that even f if the evidence is recorded in the absence of the husband but in presence of his counsel, the mere absence of a formal order

dispensing with the personal attendence of the husband is not per se fatal to the validity of the proceedings, unless it is shown that the husband has

been prejudiced the court, in revision will not interfere. These observations have been made in A. I. R. 1960 panjab, 249, 1260 C. L. J. 640 and

A. I. R. 1956 Vinddhapradesh, 37. I, therefore, see no force in the argument that because of the wrong procedure adopted by the magistrate, the

order is bad in law, which can be ignored by the executing court. On facts this court cannot interfere inasmuch as the findings are concluded by the

observations made by the two courts below.

For the forcegoing reasons, I find no force in this revision petition, which is hereby dismissed.