B. N. KRISHNAN, J.

( 1 ) THE appellant herein was the petitioner before the Principal Judge, Family court, Bangalore, in C Mis. No. 446pf 1990 and being aggrieved by the dismissal of the petition filed by her under Section 125, Cr. P. C has preferred this appeal. The petitioner has pleaded that she was married to the respondent on 13-4-1977 and till August, 1980 they were living without much problem and in that month he married another girl by name Jayataxmi and subsequently used to visit her. Respondent has not been paying anything to her towards her maintenance. He has sufficient means as he is working as a mechanic in B. T. S. , Bangalore, and gets salary of Rs. 2,500/- per month. Therefore, she has sought for recovery of separate maintenance of Rs. 500/- per month. The respondent remained absent after service of notice in the trial court and thereafter he was placed ex pane and the case was posted for ex pane evidence by way of affidavit and the petitioner filed an affidavit swearing to the several circumstances pleaded by her in support of the petition and after consideration of the said affidavit, the learned Judge came to the conclusion that no case had been made out for grant of maintenance and accordingly dismissed the petition. It is being aggrieved by this order of dismissal of petition that the petitioner has preferred the present appeal.

( 2 ) AFTER having heard the learned Advocate for the appellant, we are satisfied that the order of the learned Magistrate should be set aside solely on the ground that the procedure adopted is in direct contravention of Section 126, of the Criminal Procedure Code (for short 'the Code') and in that view of the matter it would not be open to this Court to consider the case, put forward by the appellant, on merits. Though the learned Advocate for the appellant also wanted the order passed by the family court to be set aside, his case was not that there is any lacuna in the procedure adopted by the learned Judge, but that the conclusions arrived at by the learned Judge are not supportable and the said conclusion on facts should be reversed and an order granting maintenance should be passed.

( 3 ) SECTIONS 125 to 128 of the Code occur in Chapter IX thereof. Section126 (2) of the Code which refers to the way in which the evidence to be recorded in a proceeding under Section 125, reads as hereunder:"all evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons cases : provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the court, the Magistrate may proceed to hear and determine the case ex pane and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper. "the learned Advocate for the appellant contended that Section 126 of the Code would come into the picture only if a Magistrate were to exercise the jurisdiction and it is the jurisdiction of the Family Court under Section 7 of the Family courts Act (for short 'the Act') that has been invoked for grant of maintenance and therefore there is no scope for this Court to find out whether the proceedings taken by the learned Judge of the Family Court are in accordance with Section 126 of the Code. There is more than one fallacy in this argument advanced on behalf of the appellant. Undoubtedly the Family Court exercises jurisdiction to grant maintenance by virtue of Section 7 of the Act. It is by virtue of Section 7 (2) (a) of the Act that the Family Court gets jurisdiction to exercise

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