Het Ram v. Smt. Ram Kunwari .

P.N Bakshi, J.:— Smt. Ram Kunwari had filed an application under Sec. 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. Ram 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. 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.

3. 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.

4. 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 Sec. 488, Cr. P.C sub-clause (6) all evidence in such proceedings must be taken in the presence of the husband. Failure to do so vitiates the entire proceedings. Sec. 488(6) runs as follws:—

“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 exparte. Any order so made may be set aside for good cause shown on application made within three months from the date thereof.”

5. The question therefore, for determination is whether the use of the word ‘shall’ in Sub-sec. (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.

6. Suffice it to say that the view expressed by Mysore, Hyderabad and Sindh High Courts is that:—

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

7. Reference has been made to—

Nranappa v. Putamma A.I.R 1963 Mysore 174., Venkata-Rao v. Rukminbai A.I.R 1954 Hyderabad 178. and Rupchand Issardas v. Emperor A.I.R 1942 Sindh 32..

8. In the above cases, the order passed under Sec. 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 interpretted as mandatory casting a duty upon the Magistrate to take all evidence in the presence of the husband. A contrary view however has been expressed by Punjab and Vindhya Pradesh High Courts.

“In proceedings u/s. 488 evidence was recorded in the absence of the husband, but in the presence of his counsel, the mere absence of a formal order dispensing with the personal attendance of the husband is not pet se fatal to the validity of the proceedings. In order to attack the validity of such proceedings, it must of shown that the husband had been pre judiced and the taking of evidence in the absence of the husband, but in the presence of his counsel, has in fact resulted in some failure of justice.”

9. This view has been expressed in Major Jogindar Singh v. Bibi Raj Mohindar Kaur A.I.R 1950 Punjab 249. and Babulal Kurmi Khalasi v. Shanti Devi A.I.R 1956 Vin. Pra. 37..

10. The term ‘shall’ in its ordinary significance is mandatory, Unless the ordinary interpretation leads to some absurd or inconvenient results or is contrary to the intention of the Legislature as envisaged a particular statute, the ordinary interpretation of the term is normally adhered to. It has been held in Bhikraj Jaipuria v. Union Of India A.I.R 1962 S.C 115. that:—

“Where a statute requires that a thing shall be done in the prescribed manner or form but does not set out the consequences of non-compliance, the question whether the provision was mandatory or directory has to be adjudged in the light of the intention of the legislature as disclosed by the object, purpose and scope of the statute.”

11. Examining Sec. 488, Cr. P.C in the light of the above observations, we find that this is a summary remedy which has been prescribed for the maintenance of a wife who has been neglected and not maintained by her husband. The maximum maintenance permissible under this Sec. is Rs. 500/- per month. An opportunity is provided to the husband even after the filing of the application under Sec. 488, Cr. P.C to agree to maintain his wife. Proviso to Sec. 488(3) is to the following effect:—

“Provided that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.”

12. Thus by insisting on the presence of the husband while the statements of the witnesses are being recorded, an opportunity is indirectly provided to the husband to patch up the differences and to effect a change of heart and restore a life of conjugal happiness by offering to maintain his wife. Not only that, it is also possible to envisage a situation whereby the intervention of relations of either parties in such proceedings, the husband and wife may by mutual consent agree to live separately. Sec. 488(1) is not a substantive offence and a break up of the family is more often than not avoided by personal persuasion and rethinking rather than by remaining at long distance from each other. In my opinion there two opportunities of reconciliation and separation by consent were looming large in the minds of the Legislature when it insisted on the presence of the husband during the period evidence was taken on behalf of the applicant. I am therefore, of the view that the use of the word ‘shall’ under Sec. 488, Cr. P.C imposes a mandatory duty upon the court to record the evidence in these proceedings in the presence of the husband. It is only when for good reasons, his personal attendance is dispensed with that the presence of his pleader during the continuance of such proceedings can be deemed to be sufficient compliance with the requirements of Sec. 488(6), Cr. P.C The Magistrate may also proceed to hear and determine the case of the parties if he is satisfied that the husband is wilfully avoiding service or wilfully neglects to attend the Court, but, otherwise all evidence under Chapter XXXVI of the Cr. P.C must be taken down in the presence of the husband, or father, as the case may be. I am therefore inclined to accept the view taken by the Mysore, Hyderabad and Sindh High Courts. I disagree with the view accepted by the Punjab and Vindhya Pradesh High Courts.

13. Though it is not necessary for me to go into the question whether there has been any miscarriage of justice in the present case as a result of the non-appearance of Het Ram in the preceedings under Sec. 488, Cr. P.C I agree with the reasons given by the Sessions Judge that there has been a miscarriage of justice.

14. In the view of law which I have taken above, it is not necessary for me to dialate further on this question.

15. I, therefore, accept this reference made by the Sessions Judge, Etawah, set aside the order of the Sub-divisional Magistrate, Oraiya dated 15-7-1972 and direct that the case shall be remanded to the trial court for decision in accordance with law in the light of the observations made by me with regard to the mandatory nature of the provision of Sec. 488(6), Cr. P.C

16. Reference accepted.

17. Case remanded.