Order. 1. This revision is directed against the order passed by the learned Third Additional Judicial First Class Magistrate, Nellore, in Crl.M.P. No.1542 of 1979 in M.C.No. 21 of 1979 on the file of his Court. The petitioner herein is the husband of the 1st respondent and father of the respondents 2, 3 and 4. The respondents filed a petition under section 125, Criminal Procedure Code, against the petitioner claiming maintenance. It was alleged in the petition that the petitioner married the 1st respondent, according to Hindu law and custom about 14 years ago, and that, after the consummation of the marriage, while the petitioner and the 1st respondent were living amicably, the respondents 2 to 4 were born to them. It was further alleged that the petitioner contacted several vices and bad habits off late, that he was wasting the income of the joint family and that he has been beating the respondents often for no reason at all. According to the respondents, the petitioner became irresponsible to the family and completely abandoned the respondents since about five months prior to the institution of the petition. The petitioner gave up residence in the family house and set up separate residence threatening the respondents with a view to completely get rid of them. The petitioner has an annual income of Rs. 15,000 to Rs. 20,000 owning about 29 acres of wet land in the village. It is further alleged that the petitioner has been neglecting and refusing to maintain the respondents, even though he has sufficient means and there is no lawful or reasonable excuse for his negligence and refusal. Monthly maintenance at the rate of Rs. 200 for the 1st respondent and Rs. 100 for each of the other three respondents was claimed. The petitioner filed a counter opposing the application though he admitted that the 1st respondent is the married wife and the respondents 2 to 4 are the minor children through the 1st respondent. In the counter, the petitioner denied all the allegations made by the respondents and added that, after the birth of the third child, the petitioner had undergone vasectomy operation on 15th May, 1972, and that the 1st respondent gave birth to an illegitimate child on 16th March, 1977, having lived in open adultery with one Ramakrishna Reddy and others. In the counter, the petitioner denied all the allegations made by the respondents and added that, after the birth of the third child, the petitioner had undergone vasectomy operation on 15th May, 1972, and that the 1st respondent gave birth to an illegitimate child on 16th March, 1977, having lived in open adultery with one Ramakrishna Reddy and others. It was further averred in the counter that the 1st respondent wilfully deserted the petitioner about three and half years before the institution of the petition and that eversince she was living in open and continuous adultery with Ramakrishna Reddy and others. The petitioner also denied that he did not have such annual income as alleged by the 1st respondent. After the counter was filed, the Court posted the case for enquiry and directed that the petitioner herein should adduce evidence in the first instance. The petitioner filed an application requesting the Court to rescind the order directing him to adduce evidence in the first instance and to record evidence in the case as if in a summons case. The petitioner requested the Court to record the evidence of the respondents in the first instance. On a consideration of the contentions of the parties, the Court dismissed the petitioner's application and the petitioner came up in revision to this Court against the said order of dismissal. 2. Sri S.R. Ashok, the learned Counsel for the petitioner, contends that evidence in proceedings under section 125, Criminal Procedure Code, should be recorded as if in a summons case and so it is always the petitioner who is in the position of a complainant that should adduce evidence in the first instance except when the respondent, who is in the position of an accused, unequivocally admits all the allegations in the petition. Sri M.Y.K. Rayudu the learned Counsel for the respondents on the other hand, contends that the petitioner and the 1st respondent in proceedings under section 125 , Criminal Procedure Code, are not complainant and accused and that there is no specific provision which provides that the enquiry under section 135, Criminal Procedure Code, is to be conducted as if in a summons case. It is submitted by Sri M.Y.K.Rayudu that the proceedings are of a civil nature entitling the Court to direct the parties to adduce evidence so as to discharge the burden of proof that is laid on them in the light of the contentions raised by them in the petition and the counter. 3. The short question for decision in this revision therefore is: In a proceeding under section 125, Criminal Procedure Code, is it the petitioner or is it the respondent that should commence the adducing of evidence? 4. Chapter IX of the Code of Criminal Procedure, provides for “order for maintenance of wives, children and parents”. Sections 125 to 128 are the only sections that are comprised in this chapter. section 125 of the Code of Criminal Procedure, 1973, corresponds with sub- sections (1) to (5) of section 488 of the repealed Code and the section deals with the circumstances under which a Magistrate can pass an order of maintenance. The section does not create any right for maintenance. It proceeds on the assumption of the existence of a right. In the case of a wife and husband, the provision for maintenance is based on the primary concept of the husband's liability to maintain the wife and the wife's liability to be a virtuous and loyal to the husband. section 126 corresponds with sub sections (6) to (8) of section 488 of the repealed Code with slight changes and deals with the procedure of a proceeding under section 125 , Criminal Procedure Code. section 127 corresponds with section 481 of the repealed Code. It provides for the alteration in maintenance allowance which might have been granted and also for the cancellation of a maintenance order under certain circumstances. section 128 provides of the enforcement of an order of maintenance. These provisions are a complete Code in regard to orders of maintenance of wives, children and parents to be passed by a criminal Court. 5. The object of the proceedings, for maintenance is to protect deserted wives, children and parents, who are unable to maintain themselves from starvation, as starvation may force them to resort to undesirable vices. It is a speedy and summary remedy for mere maintenance and not a remedy for the establishment of any regular civil rights. 5. The object of the proceedings, for maintenance is to protect deserted wives, children and parents, who are unable to maintain themselves from starvation, as starvation may force them to resort to undesirable vices. It is a speedy and summary remedy for mere maintenance and not a remedy for the establishment of any regular civil rights. The right to maintenance under the Code has been recognised by the Legislature to neglected wives, children and parents irrespective of the nationality or the creed of the parties. A right of maintenance dependent on the personal law of the individual is a right capable of being enforced through the Court and that right is altogether different from the statutory right to maintenance conferred in the Code. For instance, though a Buddhist monk may, under his personal law, be exempt from maintaining his child, he is bound to maintain his child under the Code of Criminal Procedure. Under the Mohammaden Law, a husband may be able to marry a second wife and keep more than one wife at the, same time; but it would not be open to the husband to say that the wife cannot claim separate maintenance by refusing to live with him on the ground of his taking a second wife. So also the provisions of sections 24 and 25 of the Hindu Marriage Act, do not stand in the way of a Magistrate granting relief under section 125 of the Code if the conditions required under the section are satisfied. The maintenance paid under section 24 of the Hindu Marriage Act, can be adjusted towards the liability created under section 125, Criminal Procedure Code. The provisions in section 18 or 20 of the Hindu Adoptions and Maintenance Act, cannot also affect in any way the right of a wife or a child to claim maintenance under section 125, Criminal Procedure Code. 6. No doubt, neglect to maintain a wife or child or a parent is not an offence and an application under section 125, Criminal Procedure Code, is not a ‘complaint’ under the Code. The respondent also is not a person accused of any offence. The proceedings under the section cannot be described as a criminal trial for any offence. 6. No doubt, neglect to maintain a wife or child or a parent is not an offence and an application under section 125, Criminal Procedure Code, is not a ‘complaint’ under the Code. The respondent also is not a person accused of any offence. The proceedings under the section cannot be described as a criminal trial for any offence. Though the proceedings are in the nature of civil proceedings, as observed already, they are wholly governed by the provisions of the Code and a Magistrate acting under Chapter IX, cannot exercise the powers of a civil Court. Proceedings for maintenance under the Code of Criminal Procedure are judicial proceedings of a criminal Court and are governed entirely by the provisions in the Code only. 7. The Code provides for an application being filed by a neglected wife or child and an order for the payment of maintenance being made in favour of the claimant on proof of the requisite relationship between the claimant and the person against whom the claim is made and also other circumstances including the primary circumstance of the. person neglecting and refusing to maintain the person entitled to be maintained. section 126 expressly provides for the procedure, of the proceedings, while sub- section (1) specifies the persons against whom the proceeding can be instituted, sub section (2) of section 126 reads as follows: “All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons cases: Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate, may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject, to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper”. The main sub- section (2) provided as if the proceedings are of a criminal nature. The main sub- section (2) provided as if the proceedings are of a criminal nature. The sub- section requires the presence of the respondent or his pleader for recording the evidence in the case. The general rule in criminal trials is that all evidence shall be taken in the presence) of the accused or in the presence of his pleader, if his personal attendance has been dispensed with. The exceptional recording of evidence in the absence of the accused under section 299, Criminal Procedure Code, is only for the purpose of preserving evidence and it does not enable the Court to proceed with the trial of case or to pass any sentence in the absence of the accused. The evidence recorded under section 299, Criminal Procedure Code, can no doubt be used against the accused after he is apprehended; but it can be used only when a regular trial is held against the accused by recording evidence in the presence of the accused or his pleader during the enquiry or trial which commences only after his apprehension and production or appearance before the Court. It is only in civil cases that evidence can be recorded in the absence of one of the parties, if such party deliberately absents himself from the Court. The proviso to sub- section (2) of section 126 empowers the Magistrate to record evidence just like in a civil suit under the circumstances pointed out in the proviso. This by itself does not mean that the Magistrate becomes, the presiding officer of a civil Court. As pointed out already, the Magistrate acts only as a criminal Court and within the four corners of the provisions contained in Chapter IX. In any case, where a petitioner comes to the Court with certain allegations, it is for the petitioner to prove those allegations except when allegations have been unequivocally admitted by the opposite party. The mere fact that the opposite party takes some special plea does not mean that the petitioning party is absolved of his or her basic liability to prove the facts necessary for the relief claimed. A wife, child or parent, who claims maintenance under section 125, Criminal Procedure Code, has to prove that she or he is unable to maintain herself or himself and that the person against whom the claim is made is wilfully neglecting and refusing to maintain. A wife, child or parent, who claims maintenance under section 125, Criminal Procedure Code, has to prove that she or he is unable to maintain herself or himself and that the person against whom the claim is made is wilfully neglecting and refusing to maintain. If the person against whom the claim is made denies the allegations made by the petitioner and further pleads that, even if the allegations are true, he is not liable to maintain on account of any special eround of exemption, it would not be open to the Court to direct the person to first prove the ground of exemption, pleaded by him. He can be directed to prove the ground of exemption if only he admits unambiguously all the facts and circumstances which constitute the basis of the claim for maintenance. 8. In the instant case, the petitioner denied all the circumstances alleged by the respondents in their petition claiming maintenance. Besides the denial, he pleaded that the 1st respondent has been living in continuous and open adultery. May be, if his plea is true, the 1st respondent would be, disentitled to maintenance even if all the other circumstances entitling her to maintenance are, proved by her but that does not mean that the petitioner herein should prove that ground of exemption merely because he has pleaded it as an additional ground in his favour, when he categorically denied the very right of the 1st respondent, to claim maintenance. 9. Relying on Kista Pillai v.Amirthammal1 and Subbayamma v. Venkata Rao2 Sri M.Y.K. Rayudu the, respondent's learned Counsel, contends that, in a case where the husband makes an application that the wife was living in adultery, it is for the husband to begin the case and let in evidence of unchastity and not for the wife to begin her case. In Kista Pillai's case1, an application for maintenance under section 488 of the repealed Code was allowed by the Sub-Divisional Magistrate. The main defence to the application, by the husband, Kista Pillai, was that the wife, Amirthammal, was living in adultery and that, therefore, she was not entitled to maintenance. At a late stage of the case, the husband adduced evidence that the wife was not only living in adultery prior to the institution of the petition, but even during the proceedings before the Sub-Divisional Magistrate. At a late stage of the case, the husband adduced evidence that the wife was not only living in adultery prior to the institution of the petition, but even during the proceedings before the Sub-Divisional Magistrate. No opportunity was given to the wife to rebut that evidence. The Magistrate dismissed the husband's plea on the ground that he did not prove that the wife was living with the adulterer in the latter's own house. Setting aside the order of the Sub-Divisional Magistrate and directing further enquiry, Pandrang Row, J., observed: “My opinion is that in a case of claim for maintenance like this the respondent who puts forward a charge of ‘living in adultery’ against the petitioner, as his only defence to the claim for maintenance, ought to begin his case, and the petitioner against whom this charge is made ought to have an opportunity of adducing rebutting evidence. This procedure has not been followed in this case and in my opinion the inquiry must have done prejudice to the petitioning wife”. So observing, the learned Judge directed further enquiry in which both the parties were to be given opportunity to adduce additional evidence and in particular, “to let the petitioning wife have the last word” and to dispose of the petition afresh in the light of the observations contained in the judgment. The same view has been expressed by Somasundaram, J., in Subbayamma v. Venkata Rao1 The two cases relied on do not support the contention of the respondents’ learned Counsel. In Kista Pillai's case2, the husband's only plea was that the wife was living in continuous adultery. In the later case i.e., Subbayamma's case1, the learned Judge observed that was is main defence. Moreover, in both the cases, what was stressed is that, if a husband adduce evidence of the wife living in adultery in support of his plea, the wife must be given an opportunity to adduce rebutting evidence. Neither of the two cases can be construed as an authority for the proposition that, in all cases where the husband pleads a special exemption, it is the husband that ought to lead evidence in the first instance. 10. In Mst. Neither of the two cases can be construed as an authority for the proposition that, in all cases where the husband pleads a special exemption, it is the husband that ought to lead evidence in the first instance. 10. In Mst. Dhan Kaur v. Niranjan Singh3 a Division Bench of the Punjab High Court held that proof of neglect or refusal by the husband to maintain his wife is the basis of a claim for maintenance under section 488 (of the old Code) and that, without proof of that, no order of maintenance can be made in favour of the wife under that section even though she is living separately from her husband in pursuance of the statutory right to live separately from him because he has married again or has taken a mistress to himself. It was also pointed out by the Division Bench that neglect or refusal may be express or implied and, in the circumstances of a particular case, it may be inferred by the Court from the conduct of the husband and the keeping of a mistress or marrying a second wife may be considered by the Court as an indicative circumstances of his conduct towards the wife claiming maintenance. 11. In Subhagi Devi v. Murli Pradhan1 it was pointed out that the jurisdiction of the criminal Court to make an order of maintenance against a person having sufficient means arises only upon proof of neglect or refusal on his part to maintain his wife. The proof may be by a categoric admission of the husband or it may be by the evidence adduced on behalf of the wife. In the absence of proof of neglect or refusal by admission or evidence, it would not be open to the Magistrate to pass any order for maintenance. 12. section 102 of the Indian Evidence Act, provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 12. section 102 of the Indian Evidence Act, provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. In the instant case, if the petitioner does not lead any evidence and the respondents also do not lead any evidence, the petition pf the respondents claiming maintenance has to be dismissed for want of necessary proof of the neglect and refusal to maintain on the part of the petitioner and also for want of proof of other facts enabling the Court to decide the quantum of maintenance that is awardable to the respondents, in so far as the petitioner denied under his counter every allegation made by the respondents in their petition. The burden of proving the facts constituting the risrht to claim maintenance and other facts which enable the Court to decide reasonable amount of maintenance within the limits prescribed under the law is on the respondents and it is therefore but proper that the respondents give evidence, on their side in support of their claim. It is abundantly clear from an examination of the relevant provisions in the Code and the observations in the cases considered supra that, where a petition claiming maintenance is filed under section 125, Criminal Procedure Code, the claimant cannot be granted an order of maintenance except when all the facts necessary for passing an order of maintenance and for fixing the quantum of maintenance are proved by the claimant, who should adduce evidence in proof of the required facts. If, however, the person against whom the claim is made admits all those facts which render him liable to pay separate maintenance, but pleads exemption from payment on any special ground, it would be for him to prove the facts constituting the special ground of exemption. In the latter case, the claimant would be given an opportunity to adduce evidence in rebuttal. The impugned order of the Magistrate, directing the petitioner to lead evidence in the first instance is unsustainable and cannot be approved. In the latter case, the claimant would be given an opportunity to adduce evidence in rebuttal. The impugned order of the Magistrate, directing the petitioner to lead evidence in the first instance is unsustainable and cannot be approved. The same is accordingly set aside and it is held it is for the respondents, the wife and children, who claim maintenance, to lead evidence in proof of the facts alleged by them and also in denial of the facts asserted by the petitioner in his counter, if they are, interested in getting an order for maintenance in their favour. 13. In the result, the revision is allowed. Revision allowed.