A magistrate must take all evidence in the presence of the husband or father, and can only proceed ex-parte if satisfied that the husband or father has wilfully neglected to attend court. Additionally, a warrant of attachment for non-compliance with a maintenance order cannot be issued without first issuing a show cause notice to the husband.

1. - These are two references made by the learned Additional Sessions Judge, Banswara, with a recommendation that both the orders of the learned Sub-Divisional Magistrate, Kushalgarh, dated 21st March and 27th March, 1973, may be set aside. As both these orders were passed in a proceeding under S. 488 Cr. P.C. by the learned Sub-Divisional Magistrate, Kushalgarh, they are disposed of together by single order. It will not be out of place to mention that the learned Sub-Divisional Magistrate, Kushalgarh, by his order dated 21st March, 1973 refused to set aside the ex-parte order of maintenance passed on 16th September, 1972, on the ground that no good cause was shown by Mahipal for his non-appearance in the court on 15th September, 1972, on which date the evidence of his wife Mst. Laxmi Bai was recorded. The other impugned order of the learned Sub-divisional Magistrate, Kushalgarh, dated 27th March, 1973, related to issue of a warrant of attachment of moveable & immovable properties of Mahipal for levying the amount of arrears of maintenance to the tune of Rs. 770/-.

2. The short facts giving rise to these references may be stated as follows: Smt. Laxmi Bai is the wife of Mahipal. She presented an application on 8th February, 1972, under S. 488, Criminal Procedure Code against her husband for grant of maintenance on the ground that her husband had neglected and refused to maintain her and that she was unable to maintain herself. Upon receipt of this application, the learned Sub-divisional Magistrate called upon the husband to appear in his court to answer the coarge levelled against him by his wife. It appears from the record that Mahipal appeared in court on 25th April, 1972, in response to the summons served upon him. He however, sought an adjournment for filing a written reply on 25th April, and 5th May, 1972, on the ground of his illness. The learned Sub-Divisional Magistrate granted the adjournments and directed Mahipal to file his written reply on 2nd June, 1972. Mahipal again sought an adjournment on 2nd June, 1972, but the court did not adjourn the case for filling a reply. Mst. Laxmi Bai was ordered to adduce her evidence on 12th July, 1972. Her witness could not be examined on 12th July,1972 as the case was adjourned at the request of her husband upon payment of costs of Rs. 25/-. The next date fixed in the case was 5th September, 1972, but on that date Mst. Laxmi Bai and her witnesses could not appear to give evidence in the case. The learned Sub-divisional Magistrate adjourned the case to 15th September, 1972 on the request of learned counsel appearing on behalf of Mst. Laxmi Bai. On 15th September, 1972, Mst. Laxmi Bai brought her witnesses in the court but her Magistrate was satisfied that Mahipal neglected to attend the court. He, therefore, recorded the statements of Mst. Laxmi Bai and her witnesses on that date in the absence of Mahipal and his counsel. On the next date, i.e. 16th September, 1972, he finally decided the case in favour of Mst. Laxmi Bai and allowed her maintenance at the rate of Rs. 140/-, per month. Later on, on 11th October, 1972 Mahipal made an application to the learned Sub Divisional Magistrate that the ex-parte order of maintenance passed against him on 16th September, 1972, may be set aside, because he fell ill on 15th September, 1972 and could not attend the court on account of illness. In support of his application Mahipal put in his own affidavit and a medical certificate. On 3rd November, 1972 the learned counsel for Mst. Laxmi Bai expressed his desire to cross-examine the husband upon his affidavit. The record shows that there was no cross-examination. The learned Sub-divisional Magistrate rejected the application of the husband for setting aside the ex-parte order of maintenance on 21st March, 1973. Thereafter on 27th March, 1973, he issued a warrant of attachment of the properties of Mahipal for levying the amount of arrears of maintenance.

3. Aggrieved by these orders dated