Irfan Husain Khan v. Mst. Raisa Begum — 1967 DIGILAW 460 (ALL)

JUDGMENT M.H. Beg, J. - This is a revision application of a husband against an order passed on 15th September, 1965, by a learned Magistrate 1st Class, Agra, under Section 488, Cr.P.C. awarding maintenance to the opposite party, Mst. Raisa Begam, his wife, for three months from 7th July, 1965, at the rate of Rs. 30/- per month, and to her children from the applicant at the rate of Rs. 20/- per month each from the date of the application which was 15th June, 1965. The amount of maintenance and the grounds upon which it has been ordered do not appear to be unreasonable. Unfortunately, the learned Magistrate has overlooked the nature of proceedings under Section 488, Cr.P.C. and failed to proceed in accordance with law. Hence, the revision application to this Court. The learned Magistrate summoned the applicant to appear on 22-6-1965. The applicant appeared and asked for time to file the written statement which he filed on 7-7-1965. It appears that the magistrate took no evidence. On 7-7-1965, the applicant pronounced an oral divorce in open court before the Magistrate. The Magistrate sitting in court acted as a witness to this divorce in the court. The Magistrate then fixed 21st July, 1965, for arguments without taking any evidence. On 21st July, 1965, certain documents were filed by the applicant. Among these was a Fatwah dated 11th May, 1965, indicating that the applicant had stated to the Moulavi who gave the Fatwah that the opposite party Smt. Raisa Begam had left him four months earlier, although he had told her that if she did so she would be divorced. It is apparent that, in his statement to the Moulavi, the applicant did not rely at all upon a divorce pronounced orally, but he relied upon an automatic divorce operating upon the fulfilment of a condition laid down for the divorce. Another document filed was a notice dated 3rd July, 1965, in which the applicant stated through a lawyer that he had given an oral divorce before witnesses on 9-5-1964. No such oral divorce was mentioned when obtaining the Fatwah dated 11th May, 1964. The notice given through the lawyer contains no mention of the fact placed before the Moulavi who gave the Fatwah. These facts if duly proved by evidence, would have been sufficient to discard allegations of divorce before the divorce in court on 7th July, 1965. No such oral divorce was mentioned when obtaining the Fatwah dated 11th May, 1964. The notice given through the lawyer contains no mention of the fact placed before the Moulavi who gave the Fatwah. These facts if duly proved by evidence, would have been sufficient to discard allegations of divorce before the divorce in court on 7th July, 1965. The fact, however, that the learned Magistrate did not take any evidence of the complainant and did not get the documents filed proved in accordance with law has made it possible to contend that the order of the learned Magistrate is not based upon any evidence on record in the eye of law. It is true that the proceedings under Section 488, Cr.P.C. are summary proceedings. They are, however, judicial proceedings, Section 488, Cr.P.C. sub-sec. (6) lays down: - "All evidence under this Chapter has to 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 case of summons cases." The provision does not apply the procedure for the trial of summons cases by the Magistrate because proceedings under Section 488 are not criminal trials. Nevertheless, the statements have to be recorded in the manner prescribed for summons cases. The law makes it encumbent upon the Magistrate to record evidence of both sides. The applicant's counsel cited Nand Lal Misra v. Kanhaiya Lal Misra, A.I.R. 1960 SC 852, where the Supreme Court held that proceedings under Section 488, Cr.P.C. are of a civil nature and do not contemplate a preliminary enquiry. In that case, the question was whether a notice should issue to the opposite party, the alleged father of the applicant, after evidence had been taken on behalf of the applicant. The question whether the Magistrate could proceed without taking any evidence at all of either side was not before the court in that case. In that case, the question was whether a notice should issue to the opposite party, the alleged father of the applicant, after evidence had been taken on behalf of the applicant. The question whether the Magistrate could proceed without taking any evidence at all of either side was not before the court in that case. If, however, the proceedings are judicial proceedings of a civil nature in which evidence has to be taken, as is clear from the provisions of Section 488, Cr.P.C. and the observations made by the Supreme Court mentioned above, some "evidence" must be taken by the Magistrate in support of the application in accordance with law before he could pass an order for maintenance under Section 488, Cr.P.C. And, the evidence given by an opposite party has also to be recorded. The condition precedent to the passing of an order under Section 488, Cr.P.C. is that the applicant is a person entitled to maintenance and the opposite party has means but has neglected or refused wrongfully to maintain the applicant. The amount of maintenance to be awarded has also to be ascertained in order to pass a suitable order. The order could only be passed judicially upon "proof" of neglect or refusal. In other words, relevant matters must be "proved" by adduction of evidence given on oath and subjected to cross-examination. The document submitted in evidence have also to be proved in accordance with provisions of law. Unfortunately, this was not done by the learned Magistrate in the present case. The contention, therefore, that the order of the learned Magistrate is a nullity inasmuch as it is not based upon any evidence on record is well founded. The reply on behalf of the opposite party was that evidence was on record in the shape of admissions. My attention was directed to the written statement filed by the applicant. In that written statement, the applicant had denied the maintainability of the application under Section 488, Cr.P.C. He had stated that he had pronounced a divorce orally in May, 1964, but this was in conflict with the legally unproved documentary evidence submitted by the applicant. It was not possible for the Magistrate to choose or to reject the allegations made in the written statement by the applicant without putting his conflicting assertions to him as required by Section 148 of the Evidence Act. It was not possible for the Magistrate to choose or to reject the allegations made in the written statement by the applicant without putting his conflicting assertions to him as required by Section 148 of the Evidence Act. It is only clear admissions which need not be so put. (Dubious statements have to be put to the persons making them before they can be used against them, as held in Ajodhya Prasad Bhargava v. Bhawani Shanker Bhargava, A.I.R. 1957 Alld. FB 1. I am, therefore, unable to accept the contention that the applicant made admissions which made it unnecessary to take evidence in the regular manner. Consequently, this revision application must be allowed. The order passed by the Magistrate under Section 488, Cr.P.C. is set aside. The learned Magistrate must take evidence in accordance with law and determine the amount of maintenance which could be awarded to the children of the applicant whether legitimate or otherwise and children are presumed to be legitimate if born during or could be conceived during the subsistence of a marriage. I may here observe that the applicant, who himself does not appear to have given evidence, acted negligently in not asking for opportunity to lead evidence. The litigation necessitated by the fact that the applicant did not take any objection at proper time has resulted in expense to the opposite party. This could also be taken into account in awarding proper maintenance needed by the opposite party during the period for which it was allowed. This case will be decided within a week of the receipt of the record by the Magistrate concerned. Another matter also has been brought to my notice by means of an application dated 23rd November, 1967. Two affidavits were filed by Irfan Husain applicant and another affidavit was filed by his pairokar, named Shyam Lal, on 27th January, 1966, containing false allegations. It was alleged in these affidavits that the applicant had been sent to jail for non-payment of maintenance. As a result of these assertions this Court passed an order dated 27-11966 for release of the applicant on bail, and another on 31st May, 1966, for stay of the realisation of the maintenance allowance. The order dated 27-1-1966 was entirely ineffective as the applicant had not been sent to jail at all. The order dated 31-1-1966 is withdrawn. As a result of these assertions this Court passed an order dated 27-11966 for release of the applicant on bail, and another on 31st May, 1966, for stay of the realisation of the maintenance allowance. The order dated 27-1-1966 was entirely ineffective as the applicant had not been sent to jail at all. The order dated 31-1-1966 is withdrawn. A notice will issue horn this Court to the applicant to show cause why he should not be prosecuted under Section 476 read with Section 479-A, Reviison allowed.