ORDER P.N. Bakshi, J.
1. Smt. Ram Kunwari had filed an application under Section 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 Rive 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. 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 auch she had left her house.
3. Ram Kunwari examined herself, Munni Lai (P. W. 2) her cousin and Sukhbasi Lai (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 as wife.
4. 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.
5. 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 Section 488, Cr.P.C. Sub-clause (6) all evidence recorded in such proceedings must be taken in the presence of 'the husband. Failure to do so vitiates the entire proceedings. Section 488 (6) runs 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 Xtt975 Cri.L.J./42 IY 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 ex parte. Any orders so made may be set aside for good cause shown on application made within three months from the date thereof.
6. The question therefore, for determination is whether the use of the word 'shall' in Sub-section (6) of Section 488, Cr.P.C. is mandatory or directory. No case of O.UX! High Court has been pointed out to me by counsel for the parties. Divergent views have been expressed by different Courts at different times. Suffice it to say that the view expressed by Mysore, Hyderabad and Sind High Courts is that:
The provision prescribing the manner for recording the evidence during an Inquiry under Section 488 (6) is mandatory and the contravention of the provisions by the Magistrate is not merely an error or irregularity which can be cured under Section 537.
Reference has been made to AIR 19,63 Mys 174 - (1963 (1) Cri LJ 787), Naranappa v. Putamma AIR 1954 Hyd 178 : (1954 Cri LJ 1291); Venkatarao v. Rukminbai; AIR 1942 Sind 32 (43 Cri LJ 551); Rupchand Issardas v. Emperor.
7. In the above cases, the order passed under Section 488 was set aside on the ground that the evidence in these proceedings was not recorded in the presence pf the husband. The word 'shall' was interpreted 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.
Where in proceedings under Section 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 per se fatal to the validity of the proceedings. In order to attack the validity of such proceedings, it must be shown that the husband had been prejudiced 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.
This view has been expressed in, AIE 11960 Punj 249 : (1960 Cri LJ 640). Major Jogindar Singh Bibi Raj Mohin-dar Kaur and AIR 1956 Vin Pra 37 (1956 Cri LJ 1252). Babulal Kurmi v. Shanti Devi.
8. The term 'shall' in its ordinary interpretation 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 in a particular statute, the ordinary interpretation of the term is normally adhered to. It has been held in , Bhikraj Jaipuria v. Union of India that:
Where a statute requires that 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.
9. Examining Section 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 section is Rs, 500/-per month. An opportunity is provided to the husband even after the filing of the application under Section 488, Cr. P. ,C to agree to maintain his wife. Proviso to Section 483 (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.
10. 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 where by the intervention of relations of either parties in such proceedings, the husband and wife may * by mutual consent agree to live separately. Section 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 these two opportunities of reconcilation 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 Section 488, Ct 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 Section 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.
11. 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 proceedings under Section 488, Cr.P.C. I agree with the reasons given by the Sessions Judge that .there has been a miscarriage of justice. In the view of law which I have taken above, it is not necessary for me to dialate further on this question.
12. I, therefore, accept this Reference made by the Sessions Judge, Eta-wah 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 provisions of Section 488 (6) Cr.P.C.