1. Smt. Ram Kunwari had filed an application under Section 488, Cr. P.C. claiming maintenance from her husband Het Ram who was in the service of the military department. The allegation was that since Het Ram joined the defence forces, he began to dislike her ugly face and intended to remarry. The applicant did not give her consent. Differences arose as a result of which she was beaten, deprived of her ornaments and turned out of her house. She was living with her brother. Her husband had neglected and refused to maintain her. Hence she claimed Rs. 60/- per month as maintenance allowance.

2. Het Ram denied the allegations made by Smt. Kunwari. According to his case he had always maintained her and was prepared to maintain her even now if she lived in his house. According to the case of Het Ram. Ram Kunwari does not like his service in the military and as such she had left her house.

3. Ram Kunwari examined herself, Munni Lal (P.W. 2) her cousin and Sukhbasi Lal (P.W. 3) and Siaram (P.W. 4). Het Ram examined himself only. After going through the evidence on the record, the Magistrate passed an order directing Het Ram to pay Rs. 45/- p.m. as maintenance allowance to his wife.

4. Aggrieved thereby, a revision was filed before the Sessions Judge, Etawah who has made the recommendation to this Court on 4-11-1972 for quashing the order of the S. D. M. Oraiya dated 15-7-1972 and for remanding the case for retrial in accordance with law.

5. I have heard learned counsel for the parties at great length. It is the admitted case of the parties that Het Ram is in military service. It is conceded that the entire evidence of the applicant Smt. Ram Kunwari was recorded in the absence of Het Ram. His attendance was never dispensed with. Het Ram was in military service and he could not get leave. He attended the Court only for getting his statement recorded. In his absence, however, his counsel cross-examined the applicant and her witnesses. The contention on behalf of the revisionist is that in proceedings under Section 488, Cr. P.C. sub-clause (6) all evidence recorded in such proceedings must be taken in the presence of the husband. Failure to do so vitiates the entire proceedings. Section 488(6) runs as follows :-

"All evidence under this Chapter shall be taken in the presence of the husband or father as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and shall be recorded in the manner prescribed in the case of summons case.

Provided that if the Magistrate is satisfied that he is wilfully avoiding service, or wilfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any orders so made may be set aside for good cause shown on application made within three months from the date thereof."

6. The question therefore, for determination is whether the use of the word 'shall' in Sub-Section (6) of Sec. 488, Cr. P.C. is mandatory or directory. No case of our High Court has been pointed out to me by counsel for the parties. Divergent views have been expressed by different Courts at different times. Suffice it to say that the view expressed by Mysore Hyderabad and Sind High Courts is that :-

"The provision prescribing the manner for recording the evidence during an inquiry under Section 488(6) is mandatory and the contravention of the provisions by the Magistrate is not merely an error or irregularity which can be cured under Section 537."

Reference has been made to AIR 1963 Mys 174 : (1963 (1) Cri LJ 787), Naranappa v. Putamma, AIR 1954 Hyd 178 : (1954 Cri LJ 1291); Venkatarao v. Rukminbai; AIR 1942 Sind 32 : (43 Cri LJ 551); Rupchand Issardas v. Emperor.

7. In the above cases, the order passed under Section 488 was set aside on the ground that the evidence in these proceedings was not recorded in the presence of the husband. The word 'shall' was interpreted as mandatory casting a duty upon the Magistrate to take all evidence in the presence of the husb