1. ' This is a reference which arises out of a revision petition filed before the learned Sessions Judge, Muzaffarabad.
2. ' The facts of the case are that Mst. Bibi Fatimah moved an application under section 488, Cr. P. C.
3. Alleging therein that she had been neglected by her husband Noor Ali Shah and she should be granted maintenance allowance. The learned Magistrate, Athmuqam proceeded with the enquiry and passed an ex parte order for maintenance in favour of Mst. Bibi Fatimah. An application was submitted by Fajar Ali Shah, the father of the petitioner as a Mukhtar for the petitioner, for setting aside the ex parte order. Consequently, the ex parte order was set aside and the learned Magistrate enquired into the matter in dispute afresh in presence of the Mukhtar for the petitioner.
4. There was no application on behalf of the petitioner for dispensing with his presence and no formal order was passed showing that the presence of the petitioner was dispensed with. After the completion of the enquiry, the learned Magistrate passed an order allowing maintenance allowance, to the non-petitioner. There was a revision petition before the Sessions Judge who made a recommendation for setting aside the order of the Magistrate on the ground that the applicant-non-petitioner could not prove that she was maltreated by her husband. It has been further opined by the learned Sessions Judge that from the evidence it transpires that she is not prepared to live with her husband without any sufficient cause.
5. ' The learned counsel for the petitioner did not press the points upon which the learned Sessions Judge has relied and made the present reference. The learned counsel for the petitioner has, however, urged that while taking evidence, the learned Magistrate did not follow the, peremptory procedure laid down in section 488(6) of the Cr. P. C. And, therefore, the proceedings taken by him stand vitiated. He has urged that there must have been a formal order or at least circumstances showing that the personal attendance of the petitioner-non-appellant was dispensed with. The learned counsel has relied on AIR 1942 Sind 32, AIR 1954 Hyd. 178 and AIR 1959 Tripura 26. The view taken in the aforesaid cases is that subsection (6) of section 488, Cr. P. C. Is of a mandatory nature and a failure to comply with the provisions of this subsection is not merely an irregularity but an ilegality which vitiates the proceedings. In AIR 1954 Hyd. 178, it has lheen held that the direction in subsection (6) is peremptory and no presumption or inference could arise in the absence of either an application by the husband for dispensing with his presence or the order of the Court dispensing with such presence. It has also been opined that contravention of the said provision cannot be described as an error, omission or irregularity within the meaning of section 537, Cr. P. C. But it is an illegality. In AIR 1942 Sind 32, it has been held that in the absence of direct evidence, there is no room for inference that the presence of the husband was dispensed with. It was further opined in this case that although a formal order dispensing with the presence of the husband was not necessary in certain cases yet there must be circumstances indicating clearly that the question of dispensation of personal attendance of the husband or father was considered by the Magistrate. In AIR 1959 Tripura 26, it has been held that failure to comply with the provisions of subsection (6) of section 488, Cr. P. C. Is not a mere irregularity but an illegality which vitiates the proceedings. It was further observed that it was not possible to import any other considerations than those which are permitted by the plain language of subsection (6) of section 488, Cr. P. C.
6. ' The learned counsel for the non-petitioner, Khawaja Muhammad Saeed has argued that under the circumstances of the case, it would be fair to infer that personal attendance of the husband was dispensed with because the ex parte order, passed against the petitioner, was set aside on the application of the Mukhtar for the petitioner. He has argued that this Court has taken a different view in some previous cases wherein it has been held that if husband is represented by a counsel, the absence of a formal order for dispensation with the personal attendance of the husband is merely an irregularity and not an illegality.
7. ' I have considered the arguments of the learned counsel for the parties and also gone through the record. The argument that the ex parte order was set aside on the application of the Mukhtar for the petitioner of as such, it would be fair to infer that personal attendance of the petitioner was dispensed with, is without any substance because under subsection (6) of section 488, Cr. P. C the presence of husband or father, as the case may be, is necessary at the time, of recording of evidence and not at the time of setting aside the ex parte proceedings etc. It appears that Fajar Ali Shah, the Mukhtar for the petitioner continued to defend the case on behalf of the petitioner and the Court did not consider the question of personal attendance of the petitioner at the time of recording of evidence. It is correct that previously, in some cases, this Court has taken the view that if husband or father is represented by a counsel and no prejudice is shown to have been caused to such father or husband, the absence of order of dispensation of personal attendance is merely an irregularity and does not vitiate the proceedings, but in view of the weight of the authorities to the contrary, I am inclined to hold that keeping into consideration the peremptory nature of subsection
(6) of section 488, Cr. P. C., either there must be a formal order' dispensing with the personal attendance of the husband or father, or there must be an application for dispensing with such presence or there mus. he some other circumstances from which it could be gathered that the presence of the husband or father was dispensed with. In the instant case, the mere fact that the application for cancellation of the ex part order was made by the Mukhtar for the petitioner, cannot be termed t A be a sufficient circumstance to hold that the matter of personal attendanc of the husband, the petitioner, was considered by the Court and his personal appearance was dispensed with.
8. ' In the aforesaid view of the matter, the order of maintenance passed by the Magistrate is set aside. As the proceedings were taken by the Magistrate in the absence of the husband without dispensing with his persona attendance, the same stand vitiated and it is ordered that the learned Magistrate shall proceed with the application of the non-petitioner according to law and decide the case afresh.