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Criminal Revision No. 393 of 1968, decided on 12th March 1969.

S. 488(6)‑Mainte nance‑Ex parte proceedings Nothing on record to indicate that opposite‑party (husband) wilfully neglecting to attend Court nor any finding to that effect recorded by Magistrate‑Ex parte order of maintenance passed by Magistrate‑Held, not sustainable in law‑Petition by opposite party showing good cause within 3 months for setting aside ex parte order‑Rejection of such petition by Magistrate‑Held, without justification.

Soleman Sheikh v. Najamuddin Sheikh 7 D L R 89 rel.

Moazzem Hossain with Md. Abdul Aziz for Petitioner.

Nemo for the Opposite‑Party.

This Rule is directed against the orders dated 17‑10‑67 and 11‑11‑67 passed by Mr. A. Rahim, Magistrate, 1st Class, Madaripur in a proceeding under section 488, Cr. P. C.

The first‑party opposite‑party Jahanara Begum filed an application for maintenance under section 488, Cr. P. C. before the Sub‑Divisional Magistrate, Madaripur alleging that the second- party petitioner Shamsul Haque married her on 22nd Jaishta 1373 B.S. and lived with her for about a month. Since then, she was living in the house of her father Ali Ahmed but the second- party was not taking any care of her. The second‑party neglected the first‑party and did not pay any thing as her maintenance cost since Ashar 1373 B. S. She, therefore, claimed maintenance at the rate of Rs. 60 per month from the second -party.

A case was accordingly registered and a notice of the same was served by hanging in the village address of the second party.

The case was thereafter transferred to the present Magistrate for disposal. The second‑party did not appear before the Magistrate. The matter was then taken up ex parte. 8 witnesses for the first‑party were examined in the case. The learned Magistrate on appraisal of the evidence allowed the first‑party's prayer for maintenance by an order dated 17‑10‑67 and directed the second‑party to pay a sum of Rs. 60 per month as mainten ance cost with effect from 16‑8‑67.

The second‑party petitioner filed an application on 11‑11‑67 in the Court of the said Magistrate Mr. A. Rahman stating that he was a student at Comilla Survey School and was not aware of the proceeding under section 488, Cr. P. C. as no notice of the same was served on him. He came to know of the above proceeding and order from others just 2/3 days ago and as such the order dated 17‑10‑67 was liable to be rescinded so as to enable him to place his view points on the subject.

The learned Magistrate rejected the said application by his order dated 11‑11‑67. Being aggrieved thereby the second‑party petitioner moved the Sessions Judge, Faridpur under section 438, Cr. P. C. and prayed to refer the matter to the High Court. But the learned Additional Sessions Judge, 2nd Court, Faridpur rejected the same. Hence the present petition before this Court.

The learned Advocate appearing for the petitioner has contended that in view of the provisions of subsection (6) of section 488, Cr. P. C. the learned Magistrate has no power to hear and determine the case ex parte without a clear finding that the second‑party petitioner (husband) was wilfully neglecting to attend the Court and as such his ex parte order directing the husband to pay maintenance is not sustainable in law.

The point raised by the learned Advocate seems to have considerable force. Section 488 (6) of the Code of Criminal Procedure 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 dispersed with, in the presence of his pleader, and shall be recorded in the manner prescribed in the case of summons cases:

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."

It is apparent from the above provisions of law that before the Magistrate decides to proceed ex parte he must find that the second‑party (husband) is wilfully avoiding service or neglecting to attend the Court. In the instant case there is nothing on record to indicate that the second‑party was wilfully neglecting to, appear at the time of hearing of the case. There is no finding by the Magistrate that he was satisfied that the second‑party petitioner wilfully neglected to attend the Court. In the absence of any such finding the Magistrate cannot hear and determine the case ex parte. The ex parte order of the learned Magistrate cannot, therefore, be sustained in law. This view receives support from the case of Soleman Sheikh v. Najamuddin Sheikh (7 D L R 89).

The learned Advocate has next submitted that the Magistrate has power to set aside as ex parte order for good cause shown on application made within three months from the date thereof and in the present case the second‑party (husband) having filed a petition before the Magistrate on 11‑11‑67 (just 25 days after the order dated 17‑10-67) within three months from the date thereof and good causes having been shown in the petition, the learned Magistrate rejected the application arbitrarily without ascribing any reasons and the order of rejection is not at all justified.

The order of the learned Magistrate dated 11‑11‑67 runs as follows :‑

"The 2nd party comes after a long time after the disposal of the case and files a petition for revival of the case. Heard. I find no point in taking up the case for re‑hearing of retrial. The order passed will hold good, unless and until the 2nd party takes his wife to his own house.

The petition of the 2nd party is rejected."

Provision to subsection (6) of section 488, Cr. P. C. as quoted above shows that an order made ex parte by a Magistrate may be set aside for good cause shown on application made within three months from the date thereof. The second‑party petitioner in his petition dated 11‑11‑67 specifically mentioned that he was away from his house and prosecuting his studies at Comilla Survey School and that he was not aware of the proceeding in question. He also pointed out in the petition that no notice of the said proceeding was served on him. The fact that the petitioner was a student of the Survey School at Comilla had also been admitted by the first‑party Jahanara Begum in her very petition under section 488, Cr. P. C. That petition clearly mentioned that her husband was a student and prosecuting his studies at Comilla Survey School. The petitioner was thus admittedly prosecuting his studies at Comilla. Notice was served by hanging at his residence in native village in Faridpur. His grievance as to the notice and the proceeding in the circumstances, cannot be ignored. That being the position, the assertion of the petitioner seems to have a reasonable possibility of being true and thus a good cause having been shown within three months from the date thereof, the rejection of the petition dated 11‑11‑67 by the learned Magistrate has no justification.

For the reasons stated above, the impugned orders dated 17‑10‑67 and 11‑11‑67 are set aside and the matter is sent back to the learned Magistrate for re‑hearing of the case in accordance with law, giving opportunities to the parties to adduce evidence in support of their respective contentions.

The Rule is thus made absolute.

Rule made absolute.

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