The court interpreted Section 126(2) of the Criminal Procedure Code, 1973, and held that it does not require all evidence to be taken in the presence of the person against whom an order for maintenance is proposed to be made, but an exception is provided in the proviso, which allows the Magistrate to proceed ex parte if the person wilfully avoids service or wilfully neglects to attend court.

1. This application is directed against an order dated the 3rd June, 1982, passed in a proceeding under Sec-tion 125 of the Criminal P.C., 1973 (hereinafter referred to as the Code) by which the opposite party has been granted maintenance at the rate of Rs. 500.00 per month.

2. The opposite party had filed an application for maintenance under Sec-tion 125 of the Code on 24-10-1981 in the Court of the Chief Judicial Magistrate, Muzaffarpur, against the peti-tioner.

3. The opposite party had alleged that she was married with the peti-tioner in the year 1977 and had lived as husband and wife performing all the obligations of a legally married wife. After a few years, the parents of the petitioner, started ill-treating her and that appeared to be for extract-ing wealth in lieu of dowry. The relationship so deteriorated that it had become impossible for the opposite party to live with the petitioner along with his parents. The petitioner had also been influenced by his parents and ulti-mately he had also started ill-treating the opposite party. She was subjected to both physical and mental torture. Even she suspected posioning at the hands of the petitioner and his parents.

4. She was brought to Muzaffarpur in the month of May, 1981 by the peti-tioner and the petitioner had kept back ornaments and other belongings. The petitioner had disclos-ed that he would start some business at Muzaffarpur. However, after a few days, the petitioner left Muzaffarpur. Thereafter, the opposite party received a letter from the brother of the peti-tioner that she should not come to Kanpur any longer.

5. It also appears that there was a Panchaiti held at Kanpur and the peti-tioner was directed to keep the oppo-site party with him separate from his parents, but the petitioner did not abide by the same decision.

6. The opposite party claimed that she was ill and she had no money even for treatment and, as a matter of fact, although she was living with her par-ents, she was unable to maintain herself.

7. That being so, both on the ground of desertion and cruelty, she has claim-ed for maintenance.

8. In support of income of the peti-tioner, she had urged that the petitioner was having a prosperous shoe shop busi-ness at Kanpur and his income was about Rs. 1000.00 per month.

9. Show cause had been filed on 17-2-1982 by the petitioner and he had practically denied all the allegations levelled both against him and his par-ents excepting the fact of marriage. Practically all the assertions of the op-posite party were challenged and denied. As a matter of fact, the guilt, of deser-tion was fastened upon the opposite party and it was stated that she had made out a case for living away from the petitioner and that had been done in order to grab ornaments and other pro-perties worth about rupees one lac, which had been given to her at the time of marriage.

10. The petitioner had denied about the knowledge of the letter written by his brother and had asserted that the opposite party was not interested in returning back to Kanpur and live with the petitioner at all.

11. The petitioner had drawn a re-asonable apprehension in his mind that it would be extremely injurious and harmful for him to live with the op-posite party any more. Further it appears that the petitioner had filed an application for judicial separation at Kanpur.

12. The petitioner had also challenged that the opposite party had no means to maintain herself.

13. During the hearing of the pro-ceeding, one witness on behalf of the opposite party was examined on 5-3-1982. He was cross examined and dis-charged. Another witness was examin-ed, cross examined and discharged on 19-3-1982. The case way adjourned to 25-3-1982. On that date, the learned lawyer appearing on behalf of the petitioner in the lower court had filed an application that the local lawyers had been engaged by a lawyer of the Kanpur, who had brought a Vakalatnama and since then the local lawyers had been working, but the petitione