In proceedings under section 125 of the Code of Criminal Procedure, 1973, all evidence shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made. Affidavit evidence is not permissible for deciding questions of neglect, cruelty, income and quantum of maintenance.

Headnote:
MAINTENANCE - SECTION 125 OF THE CODE OF CRIMINAL PROCEDURE, 1973 - SECTION 126(2) - SECTION 254 - SECTION 296 - PROCEDURE FOR MAINTENANCE PROCEEDINGS - EVIDENCE TO BE RECORDED IN PRESENCE OF THE PERSON AGAINST WHOM ORDER IS PROPOSED - EX PARTE PROCEEDINGS ONLY IF PERSON WILFULLY AVOIDING SERVICE OR NEGLECTING TO ATTEND COURT - AFFIDAVIT EVIDENCE NOT PERMISSIBLE FOR DECIDING QUESTIONS OF NEGLECT, CRUELTY, INCOME AND QUANTUM OF MAINTENANCE.
Fact of the Case:

The petitioner challenged an order of maintenance passed by the learned Additional Chief Metropolitan Magistrate under section 125 of the Code of Criminal Procedure, 1973. The petitioner argued that the procedure followed by the learned Magistrate was contrary to the one prescribed by the Code, especially in relation to proceedings to be held under section 125.
Finding of the Court:

The court held that the procedure followed by the learned Magistrate was contrary to the one prescribed by the Code, especially in relation to proceedings to be held under section 125. The court observed that section 126(2) of the Code requires all evidence in such proceedings to be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made. The court further observed that section 296 of the Code, which permits the Court to receive the affidavit of any person whose evidence is of a formal character, cannot obviously apply when under section 125 of the Code questions relating to the neglect or cruelty on the part of the respondent, the income of the respondent and the quantum of maintenance to be given to the petitioner are to be decided.
Issues: Whether the procedure followed by the learned Magistrate was contrary to the one prescribed by the Code, especially in relation to proceedings to be held under section 125.
Ratio Decidendi: The court held that the procedure followed by the learned Magistrate was contrary to the one prescribed by the Code, especially in relation to proceedings to be held under section 125. The court observed that section 126(2) of the Code requires all evidence in such proceedings to be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made. The court further observed that section 296 of the Code, which permits the Court to receive the affidavit of any person whose evidence is of a formal character, cannot obviously apply when under section 125 of the Code questions relating to the neglect or cruelty on the part of the respondent, the income of the respondent and the quantum of maintenance to be given to the petitioner are to be decided.
Final Decision: The court allowed the petition and set aside the order dated 12th of May, 1981 passed by the learned Additional Chief Metropolitan Magistrate, 24th Court, Borivli, Bombay, in Case No. 135/N of 1980. The court directed that the said case be restored to the file of the learned trial Magistrate who will dispose it in the light of the observations made above.

JUDGMENT - R.A. JAHAGIRDAR, J.:---An order of maintenance passed by the learned Additional Chief Metropolitan Magistrate, 24th Court, Borivli, Bombay, on 12th of May, 1981 is challenged in this petition under Article 227 of the Constitution of India. The petitioner was the opponent in the application which was tried as Case No. 135/N of 1980 filed by the respondent for maintenance under section 125 of the Code of Criminal Procedure, 1973.

2. There were several dates on which the case had been adjourned from time to time. On 6th of May, 1981 the respondent filed an affidavit in which she putforth her case including the purported ill-treatment given to her by the petitioner and the estimated income of the petitioner. She prayed in the said affidavit that the petitioner be ordered to pay Rs. 500 per month, which is the maximum payable under section 125 of the Code of Criminal Procedure. Relying upon this affidavit the learned Magistrate passed the order referred to above by which he directed the petitioner to pay Rs. 500 per month from the date of the application to the respondent. An order was also made for the payment of Rs. 200 towards the cost of the proceedings. The afforesaid order is now challenged in this petition.

3. Mr. Zaverf, the learned Advocate appearing in support of the petition, has invited my attention to the averments in the petition wherein it has been mentioned that the Advocate who had been entrusted with this case was not diligent enough to keep the petitioner informed of the various dates. No particularly fixed date had been given for recording of the evidence, and therefore, the petitioner remained absent on the date on which the affidavit was taken on record and on the date on which the order was passed. It is the case of the petitioner that he came to know about the order passed only after distress warrant was issued against him. If this were the only ground on which the petitioner had raised his grievance against the order of the learned Magistrate, I would have been loathe to interfere with the same.

4. However, Mr. Zaveri has contended further that the procedure followed by the learned Magistrate is contrary to the one prescribed by the Code especially in relation to proceedings to be held under section 125. For reasons which follow and after hearing Mr. Doshi for the respondent, I am inclined to accept this contention of Mr. Zaveri.

5. Section 125 of the Code mentions that whenever a person having sufficient means neglects or refuses to maintain the persons mentioned in Clauses (a) to (d) of sub-section (1) of section 125, a Magistrate of the First Class, upon proof of such neglect or refusal, order such person to pay monthly maintenance at the rate not exceeding Rs. 500. Section 126 of the Code prescribes the procedure which is to be followed. In particular, sub-section (2) of section 126 says that 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. It is, however, further provided that if the Magistrate is satisfied that the person against whom an order for 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 parte. However, this does not mean that the Magistrate shall pass an order without recording evidence as required in the main part of sub-section (2) of section 126. The proviso only dispenses with the necessity of recording evidence in the presence of the other side if that other side is wilfully avoiding service or wilfully neglecting to attend the Court. Section 126(2) itself provides that all the evidence shall be recorded in the manner prescribed for summons cases.

6. Chapter XX of the Code prescribes the procedure to be followed in summons cases. Section 254 in the said chapter lays down that the Magistrate does not convict the accused, the Magistrate shall proceed to hear t

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