Parveen vs Rajinder

G.S. Chahal, J.

This revision has been preferred against the order of the learned Addl. Sessions Judge, Jalandhar dated 22.1.1988 vide which the order dated 30.8.86 passed by Sh. J.S. Pamma, Judicial Magistrate, I Class, Jalandhar, granting maintenance to the petitioners u/s 125, Cr.P.C. was set aside and the case was remanded.

The petitioner by means of an application u/s 125 Cr PC sought the grant of maintenance against her husband, respondent on the allegations of neglect and refusal on his part to maintain her. The respondent appeared through his father Sh. Faquir Singh and contested the application. Both the parties led evidence and the respondent himself appeared as RW.

On the assessment of the evidence, the learned Magistrate allowed the application and ordered the respondent to pay Rs. 300/ p.m. as maintenance to the petitioner. Against that order, a revision was preferred which was heard by Sh. R.D. Singla, Addl. Sessions Judge and vide the impugned order, he set aside the order of the trial Magistrate and directed retrial. This order was passed on the ground that u/s 126 (2), Cr.P.C., evidence was to be recorded in presence of the respondent and his personal appearance having not been dispensed with, the trial was not proper.

Admittedly, the respondenthusband was living abroad. He was employed in Dubai at the relevant time. At the initial stage, his father, as attorney, put in appearance on his behalf and filed the written reply. At a subsequent stage, the respondent himself put in appearance and also made a statement. The learned counsel for the petitioner, on the basis of these facts, urges that although no specific order of exemption of passed (sic) was passed, yet unless it is shown that the same has prejudiced the respondent, no illegality could be found in the order. In Major Joginder Singh v. Bibi Raj Mohinder Kaur, AIR 1960 Punjab 249 it was held that where in proceedings u/s 488, Cr.P.C. (old Code), the evidence was recorded in the absence of the husband but in the presence of his counsel, the mere absence of a formal order dispensing with the personal attendance of the husband is not per se fatal to the validity of the proceedings. In order to attack the validity of such proceedings it must be shown that the petitioner has been prejudiced and the recording of evidence in the absence of the husband, but in the presence of his counsel, has, in fact, resulted in some failure of justice. It was also observed that the word "shall" in Section 488. Cr.P.C. is not mandatory. The principle of the above quoted authority applies on all fours to the facts of the present case. The learned Addl. Sessions Judge was not justified in setting aside the order of the learned Magistrate I hereby accept the revision and set aside the impugned order and direct the learned Addl. Sessions Judge to restore the file to its original number and after hearing the parties, decide the revision on merits. The revisional Court will issue notice to the parties, through their counsel who represented them before that Court.

JUDGMENT accordingly