Order This is a husband's petition filed against the order passed by the Special First-Class Magistrate, Shimoga, on 7th December, 1972 in C. Misc. No. 132 of 1972 under section 488 of the Code of Criminal Procedure, awarding maintenance amount of Rs. 250 per month to respondent 1 and Rs. 100 per month to respondent 2 the child. 2. Respondents 1 and 2 were the petitioners before the lower Court. It was claimed that respondent 1 was the wife of the present petitioner and respondent 2 was the child and that respondent 1 was entitled to an amount of Rs. 200 per month towards maintenance and respondent 2 was entitled to an amount of Rs. 50 per month towards maintenance. The petitioner contested the petition contending that respondent 1 was not his wife and respondent 2 was not his child and that in any view of the matter the quantum of maintenance prayed for by the respondents was excessive. 3. The proceedings dragged on till 12th October, 1972. On 12th October, 1972 respondents were present and the petitioner was absent. His lawyer was present and he prayed for adjournment. That request was rejected and the petitioner was placed ex parte. At that stage the lawyer of the petitioner submitted to the Court that he was prepared to go on with the matter, and in view of that submission the lower Court set aside the order placing the petitioner ex parte. P.W.1 was examined on that day and, the case was adjourned to 25th October, 1972. Again on 25th October, 1972, the lawyer for the petitioner prayed for time and the case was adjourned to 14th November, 1972. On 14th November, 1972 the petitioner and bis lawyer were absent while the respondents were present. P.W.2 was examined and the matter was adjourned to 27th November, 1972. On that day the Presiding Officer was on casual leave and the matter was adjourned to 29th November, 1972. On 29th November, 1972, the petitioner and bis lawyer were absent. P.W.3 was examined and the case was posted for orders. The impugned order was passed on 7th December, 1972. 4. On that day the Presiding Officer was on casual leave and the matter was adjourned to 29th November, 1972. On 29th November, 1972, the petitioner and bis lawyer were absent. P.W.3 was examined and the case was posted for orders. The impugned order was passed on 7th December, 1972. 4. Sri U.L. Narayana Rao, the learned Counsel appearing on behalf of the petitioner-husband, urged that the proceedings of the lower Court, on the dates 12th October, 1972, and, onwards are not in accordance with law in view of the provisions of sub- section (6) of section 488 of the Code of Criminal Procedure. He contended that there is nothing to show that the Magistrate had satisfied himself either on 12th October, 1972 or on the subsequent dates that the petitioner had wilfully neglected to attend the Court as required by the proviso below sub section (6) of section 488 of the Code of Criminal Procedure. He relied upon the decision of this Court in The State of Mysore v. Bhimrao and another1. 5. Sri T.S. Ramachandra, the learned Counsel appearing on behalf of the respondents, argued that the petitioner was continuously remaining absent even prior to 12th October, 1972 and remained absent on 12th October, 1972 and on the further dates, and, therefore, the material on record showed that he had wilfully neglected to attend the Court and, hence, the proceedings of the lower Court, were in accordance with the said provisions of law. He nextly contended that even when such proceedings take place, an order passed in furtherance of such proceedings has to be, in law, as provided by the proviso below sub- section (6) of section 488 of the Code of Criminal Procedure, set aside by the Magistrate himself on good cause being shown by the aggrieved party by making an application to that effect within three months from the date of the order. He urged that the petitioner in this case had not made any such application and, therefore, he has no right to ask this Court to interfere in exercise of its revisional powers. 6. He urged that the petitioner in this case had not made any such application and, therefore, he has no right to ask this Court to interfere in exercise of its revisional powers. 6. Sub- section (6) of section 488 of the Code of Criminal Procedure reads 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 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. An order so made may be set aside on good cause shown on application made within three months from the date thereof.” It is, therefore, plain that it is incumbent on the Magistrate, in proceedings under Chapter XXXVI of the Code of Criminal Procedure , wherein section 488 occurs, to record evidence only in the presence of the husband or the father as the case, may be. The Magistrates have power to record evidence in the absence of the husband or the father as the case may be only when the personal attendance of the husband or the father has been dispensed with and the lawyer of the husband or the father is present in Court on such date. Under no other circumstances the Magistrate have the power to record evidence in the absence of the husband or the father as the case may be. In case the husband or the father as the case may be does not attend the Court, it is incumbent on the Magistrates to apply their mind to the facts and circumstances existing at that stage and satisfy themselves that the husband or the father as the case may be, has wilfully neglected to attend the Court. It is then only that the Magistrates can, in law, proceed to record the evidence in the absence of the husband or the father as the case may be. On 12th October, 1972, the petitioner was undisputedly absent, but he moved for an adjournment through his lawyer. It is then only that the Magistrates can, in law, proceed to record the evidence in the absence of the husband or the father as the case may be. On 12th October, 1972, the petitioner was undisputedly absent, but he moved for an adjournment through his lawyer. Therefore, it cannot at all be said that the petitioner wilfully neglected to attend the Court, because he did not neglect the matter on that day as he moved for an adjournment through his lawyer. He was diligent enough to take steps in the matter of securing an adjournment in the case on that day. It is, hence, apparent that the Magistrate, without considering the provisions of the proviso below sub section (6) of section 488 of the Code of Criminal Procedure, proceeded to record the evidence of P.W. 1. That proceedings is apparently not in conformity with the provisions of law and, hence, deserves to be quashed. The contention of Sri T.S. Ramachandra that it was obligatory on the part of the petitioner to move the lower Court, within three months from the date of the order viz., 7th December, 1972 by filing an application showing good cause for setting aside the order in question, and he, having not done so, cannot be permitted to agitate that question in this Court by way of revision petition, is not maintainable in view of the decision, of this Court in The State of Mysore's case1. Tukol, J. who rendered the decision has in regard to the very same contention, held as follows: “If the order is not in conformity with the first part of the proviso, the second part prescribing a period of three months for setting aside the ex parte order will not come into operation.” When it is found, as seen above, that the proceedings of the lower Court as on the date 12th October, 1972, are not valid in law and deserve to be quashed, it follows that the proceedings that took place on the subsequent dates viz., 14th November, 1972 and 29th November, 1972 cannot remain to be valid in law. That goes to show that the first part of the proviso below sub- section (6) of section 488 of the Code of Criminal Procedure, operates and, therefore, the order in question is not in conformity with this part of the proviso. That goes to show that the first part of the proviso below sub- section (6) of section 488 of the Code of Criminal Procedure, operates and, therefore, the order in question is not in conformity with this part of the proviso. Hence, the principle laid down in The State of Mysore's case1, applies squarely to the facts and circumstances of this case also. 7. In view of the foregoing reasons, it is seen that the order in question is unsustainable in law, and, hence, this petition is allowed. The order, dated 7th December, 1972 passed by the Special First Class Magistrate, Shimoga, in C. Mis. No. 132 of 1972, is set aside. The matter is remanded to the Court below for disposal afresh according to law. V.K. ----- Petition allowed. Matter remanded.