MS. H. N. DEV ANI, J. Rule. Mr. M. A. Kharadi, learned Advocate waives service of notice of rule on behalf of respondent No. I and Mr.L. B. Dabhi, learned Additional Public Prosecutor waives notice of rule on behalf of respondent No.2-State of Gujarat.

2. Having regard to the facts of the case and with the consent of the learned Advocates for the parties, the matter is taken up for hearing today.

3. By this petition, the petitioner seeks quashment of the order dated 13th September, 2007 passed by the learned Additional Sessions Judge, Dahod in Criminal Revision Application No. 51 of 2007 and prays that the application Exh. 28 in Misc. Criminal Application No. 168 of 2005 pending before the learned Chief Judicial Magistrate, Dahod, be allowed.

4. The facts of the case stated briet1y are that marriage between the petitioner and the respondent No. I was solemnized under the Muslim Law. Thereafter, on account of differences between the parties, the marriage resulted in a divorce. Subsequently, the respondent No. I wife, moved an application under the Muslim Women (Protection of Rights on Divorce) Act, 1986 (the Act) being Misc. Criminal Application No. 168 of 2005, before the learned Chief Judicial Magistrate, Dahod praying for maintenance.

5. In the proceedings before the learned Chief Judicial Magistrate, the respondent No. 1 filed an affidavit of her examination-in-chief, which was admitted in evidence as Exh. 22. According to the petitioner, in view of the provisions of Rule 4 of the Muslim Women (Protection of Rights on Divorce) Rules, 1986 (the Rules), it is not permissible to file affidavit of examination-in-chief. He therefore, moved an application (Exh. 28) contending that there is no provision under the Act or the Rules for giving deposition in the form of affidavit and prayed that the affidavit Exh. 22, is not admissible in evidence and is accordingly liable to be de-exhibited.

6. By the impugned order dated 30th August, 2007 the learned Chief Judicial Magistrate held that there was no legal basis for the application. That as the procedure provided for summary trial is required to be adopted with a view to ensure that the applicant gets speedy justice, the petitioner's application cannot be accepted. Besides, there is no provision under the Evidence Act, which provides for de-exhibiting a document. He, accordingly, rejected the application. Being aggrieved, the petitioner has filed the present petition praying to quash the said order.

7. Heard Mr. M. Iqbal Shaikh, learned Advocate for the petitioner, Mr.M. A. Kharadi, learned Advocate for respondent No. I and Mr. L. B. Dabhi, learned Additional Public Prosecutor for respondent No. 2 - State of Gujarat.

8. From the facts noted hereinabove, it is apparent that the dispute involved in the present petition lies in a very narrow compass. The only controversy in issue is whether under the Act and the Rules framed thereunder, affidavit of examination-in-chief is admissible in evidence.

9. It is an admitted position that the respondent NO.1 has filed the application for maintenance under the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986. In the circumstances, the proceedings before the concerned Court would be governed by the said Act and Rules framed thereunder.

10. It would, therefore, be pertinent to refer to Rule 4 of the Rules, which reads as under :

"4. Evidence :- All the evidence in the proceedings under the Act shall be taken in the presence of the respondent against whom an order for the payment of provision and maintenance, Mahr or (dower) or the delivery of property 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 specified for summary trial under the Code."

11. A plain reading of the aforesaid provision shows that the same envisages two things : firstly that all the evidence under the Act shall be taken in the presence of the respondent or when his person

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