ORDER
Anand Prasad Sinha, J.
1. This application is directed against an order dated the 3rd June, 1982, passed in a proceeding under Section 125 of the Criminal P.C. 1973 (hereinafter referred to as the Code) by which the opposite party has been granted maintenance at the rate of Rs. 500/- per month.
2. The opposite party had filed an application for maintenance under Section 125 of the Code on 24-10-1981 in the Court of the Chief judicial Magistrate. Muzaffarpur. against the petitioner.
3. The opposite party had alleged that she was married with the petitioner in the year 1977 and had lived as husband and wife performing all the obligations of a legally married wife After a few years, the parents of the petitioner, started ill-treating her and that appeared to be for extracting wealth in lieu of dowry. The relationship so deteriorated that it had become impossible for the opposite party to live with the petitioner along with his parents. The petitioner, had also been influenced by his parents and ultimately he had also started ill-treating the opposite party. She was subjected to both physical and mental torture. Even she suspected posioning at the hands of the petitioner and his parents.
4. She was brought to Muzaffarpur in the month of May, 1981 by the petitioner and the petitioner had kept back ornaments and other belongings. The petitioner had disclosed that he would start some business at Muzaffarpur. However, after a few days, the petitioner left Muzaffarpur. Thereafter, the opposite
party received a letter from the brother of the petitioner that she should not come to Kanpur any longer.
5. It also appears that there was a Panchaiti held at Kanpur and the petitioner was directed to keep the opposite party with him separate from his parents, but the petitioner did not abide by the same decision.
6. The opposite party claimed that she was ill and she had no money even for treatment and, as a matter of fact, although she was living with her parents, she was unable to maintain herself.
7. That being so. both on the ground of desertion and cruelty, she has claimed for maintenance.
8. In support of income of the petitioner, she had urged that the petitioner was having a prosperous shoe shop business at Kanpur and his income was about Rs. 1000/- per month.
9. Show cause had been filed on i7-2-1982 by the petitioner and he had practically denied all the allegations levelled both against him and his parents excepting the fact of marriage.
Practically all the assertions of the opposite party were challenged and denied. As a matter of fact, the guilt, of desertion was fastened upon the opposite party and it was stated that she had made out a case for living away from the petitioner and that had been done in order to grab ornaments and other properties worth about rupees one lac, which had been given to her at the time of marriage.
10. The petitioner had denied about the knowledge of the letter written by his brother and had asserted that the opposite party was not interested in returning back to Kanpur and live with the petitioner at all.
11. The petitioner had drawn a reasonable apprehension in his mind that it would be. extremely injurious and harmful for him to live with the opposite party any more Further it appears that the petitioner had filed an application for judicial separation at Kanpur.
12. The petitioner had also challenged that the opposite party had no means to maintain herself.
13. During the hearing of the proceeding, one witness on behalf of the
opposite party was examined on 5-3-1982. He was cross examined and discharged.
Another witness was examined, cross examined and discharged on 19-3-1982. The
case was adjourned to 25-3-1982. On that date, the learned lawyer appearing on
behalf of the petitioner in the lower court had filed an application that the
local lawyers had been engaged by a lawyer of the Kanpur who had brought a Vakalatnama and since then the local lawyers had been working but the petitioner had neither sent any instruction nor the fees had been paid and that being so, a prayer was made to the learned lower court to cancel the vakalatnama. It appears that in the petition it had also been mentioned that the party be noticed. The learned court below after considering the entire matter had rejected the prayer for issue of notice and the vakalatnama of the local lawyer had been cancelled. Two witnesses had been examined on 25-3-1982 including the opposite party.
14. Thereafter, considering the evidence and the show cause filed on behalf of the petitioner, the learned court below has passed the impugned order granting a maintenance of Rs. 500/- per month.
15. On 31-7-1982. two petitions had been filed on behalf of the opposite party, one was for a direction that the petitioner must pay her Rs. 500/- as ordered by the learned court below and another petition was that a distress warrant for realisation of the arrears amounting to Rs. 7500/- be issued. The learned Magistrate after hearing had ordered to keep the petitions on record.
16. On 3-8-1082, the petitioner had filed an application under Section 126 (1) of the Code accompanied with a fresh power.
17. That application was heard on 13-9-1982 and the learned court below by a
detailed and speaking order had rejected that application under Section 126 of the
Code. learned Counsel appearing on behalf of the petitioner has, inter alia, submitted that (i) the impugned order is bad in law as the evidence had been recorded in absence of the petitioner and that being so there has been violation of the law laid down under Section 126 (2) of the Code, (ii) there is no finding of the learned Magistrate that the opposite party was unable to maintain herself and (iii) there is no finding that the petitioner had deserted his wife, the opposite party.
18. I do not find any force in any of the contentions raised above.
19. First, I will take up the plea of the petitioner raised on the basis of Section 126 (2) of the Code. The relevant provision reads as follows:
(2) All evidence in such proceedings shall be taken in the
presence °f the person against whom an order for payment of maintenance is
proposed to be made or, where his personal attendance is dispensed with, in
the presence of 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 exparte and
any order as 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.
20. A pure perusal of the provisions laid down under Section 126 (2) of the Code will indicate that it is not completely mandatory to take all evidence in a proceeding under Section 125 of the Code in presence of the person against whom an order for payment of maintenance is proposed to be made, but there is an exception and that is indicated in the proviso to Sub-section (21 of Section 126 of the Code.
21. In the instant case, from the records it will appear that the petitioner, as a matter of fact, had never appeared physically before the court. From the petition of the learned Advocate Mr. Jai
Mangal Sharma, appearing in the lower court dated 25-3-1982 it will be appearent that he was engaged by some Advocate who had come from Kanpur and the Vakalatnama executed by the petitioner had been brought by that Advocate and in this manner the learned Advocate Had been engaged.
22. Further it will appear from the order sheets of the trial court and also on perusal of the hazari filed on behalf of the petitioner in the lower court that the petitioner had never appeared in person and the person who appeared on his behalf for the purpose of filing Hazari was always one Ragho Prasad.
23. Also from the perusal of the order sheet of the case records of the trial court, it will appear that never the personal attendance of the petitioner had been dispensed with.
24. That being so. the petitioner was contesting the case without being physically present and even when his personal attendance had not been dispensed with, he chose to proceed with the case through his lawyer in the trial court.
25. On the fateful date i.e. 25-3-1982, the petitioner’s lawyer had made a prayer to the learned court below for cancelling the Vakalatnama on the ground that neither he had received any instruction nor his fees had been paid.
26. Naturally, non-appearance of the learned lawyer was justified and based upon reasonable grounds.
27. Regarding the fact that although the learned Counsel in the trial court in his petition dated 25-3-1982. while making a prayer for cancellation of his vakalatnama, had mentioned that a notice be sent to the petitioner, the rejection of this prayer by the learned court below was perfectly
justified both on facts and on the question of law.
28. As stated above, the personal attendance of the petitioner had not been dispensed with by the court. That being so, it was the responsibility and
duty of the petitioner to be present in court. The court under the relevant provision of Section 125 of the Code had already issued the first notice for his appearance and in response to that the petitioner had appeared. Thereafter, sending of any notice whatsoever is neither contemplated under Section 125 of the Code nor there is any provision, whatsoever. for sending such notices in my opinion, in the entire Criminal P.C. Even in a case where there is a death of a party, there is no provision to send any notice whatsoever to the heirs of the deceased. Such provisions are only available in the Civil P.C.
29. Under the circumstances, if the court had not sent any notice whatsoever in the facts and circumstances of this case, the court had definitely acted in accordance with law and also in keeping with the principle of reasonableness,
30. Moreover, the learned court be-low had considered all the aspects and thereafter the application of the petitioner had been rejected, which had been filed under the provisions of Section 12.6 (2) of the Code,
31. On the basis of the facts, stated above, I have no hesitation in saying that it had been fully established that the petitioner had been wilfully neglecting to attend the court and there was no justification for him not to be present on 25-3-1982 at all.
32. In the circumstances, the plea raised by the petitioner for non-compliance of the provisions of Section 126 (2) of the Code is not at all applicable in the facts and circumstances of the case.
33. With regard to the second contention, the opposite party had clearly mentioned in her petition that she was unable, to maintain herself. She was continuously ill. She was also unable to meet the expenses of her treatment.
34. This statement is further supported by her witnesses examined on her behalf and the statement of the witnesses, remained unaltered even after the cross examination of A. W. 2 Harbansh Singh, The opposite
party has asserted this fact in her evidence also. This fact has not been specifically denied in the written statement at all.
35. Therefore, the fact that the opposite party was unable to maintain herself is deemed to be well established.
36. The fact of desertion of the opposite party by the petitioner has been considered by the trial court. Moreover, this fact has been stated in detail in the petition of the opposite party for the grant of maintenance. From the show cause it will appear that the fact of desertion is more or less admitted. The letter (exhibit 1} of the brother of the petitioner written from Kanpur to the opposite party clearly indicates that she had been deserted and further she had been asked not to come to Kanpur and maintain the matrimonial relationship. Under this circumstance, the fact of desertion is also established.
37. Now coming to the quantum of maintenance, I find that the evidence is that the income of the petitioner is about Rs. 1000/- per month. This has been well supported and established by the evidence of the witnesses examined on behalf of the opposite party. Construing the evidence on record, in my opinion, the grant of maintenance of Rs. 550/- per month is excessive. In the circumstances, the maintenance at the rate of Rs. 300/- per month being l/3rd of the income of the petitioner, can be said to be just and equitable.
38. I would like to observe that such proceeding for grant of maintenance should be adjudicated without unreasonable delay. The relief sought for can be said to be based on the principles of equity and fair play. In the instant case, it will appear that the application under Section 125 of the Code for grant of maintenance had been filed on 24-10-1981 and in one way or the other this proceeding is lingering even up to this date. Under the circumstances, it becomes necessary that the finality must reach now.
39. In view of the discussions made above, with the modification in the quantum of maintenance, as indicated above, the application is dismissed.
40. The rate of maintenance at the rate of Rs. 300/- per month will be effective from the month of May, 1981.