- (1.) Heard Learned Counsel for the applicant, learned AGA for the State and perused the entire record. By means of this application under Section 482 Cr.P.C. the applicant is praying to quash order dated 7.6.2012 passed by learned Principal Judge, Family Court, Allahabad in Case No. 834 of 2011 under Section 125 Cr.P.C. It is evident from the record that an application against the applicant for maintenance under Section 125 Cr.P.C. was moved by one Smt. Poornima, who is herein opposite party No. 2. In the said case an application under Section 126(2) Cr.P.C. was moved by opposite party (who is herein the applicant) stating therein that he alongwith his sister resides in Mumbai for his better prospects. It was further prayed in the aforesaid application that Mumbai is at sufficient distance from Allahabad and very often reservation in trains is not easily available, therefore, it is not possible for him to attend the Court on every date fixed. In furtherance of his prayer the applicant submitted that he be permitted to appear before the Court in the said case through his counsel. This application was rejected by the learned Magistrate by his order dated 7.6.2012 in the following manner: Case called out. Both the parties are present. Put up O.P. has filed W.S.O.P. has moved an application for exemption till further orders. This application is rejected. Put up on 3.7.2012 for evidence.
(2.) It is true that Section 126(2) Cr.P.C. mandates that all evidence in proceedings under Section 126 Cr.P.C. shall be taken in the presence of the person against whom an order of payment of maintenance is proposed to be made but there is an exception to this, which is enumerated in Section 126(2) itself, the excerpts of which are as follows: 126. Procedure.--(1)... (a)... (b)... (c)... (2) 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 willfully avoiding service, or willfully 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 at to payment of costs to the opposite party as the Magistrate may think just and proper. (3)... From a bare perusal of Section 126(2) Cr.P.C. it is quite clear that personal attendance of opposite party may be dispensed with, if good and cogent reasons are shown and the evidence can be recorded in presence of the pleader of the party against whom an order of maintenance is to be made. Thus Section 126(2) Cr.P.C. vests discretionary powers to the Judge/Magistrate of family Courts. It is settled that while exercising discretionary powers, the judge/Magistrate has to exercise his powers judiciously by assigning reasons in the absence of which any order passed by the concerned Court would be deemed to be miscarriage of justice. The aforesaid order impugned passed by the Principal Judge, Family Court Allahabad appears to have been passed in a haste manner without applying judicial mind and without assigning any reason, therefore, the order dated 7.6.2012 is not sustainable and is hereby quashed. For the aforesaid reason, I allow the instant application and remand the case to the Court concerned to reconsider and decide the same afresh by a reasoned order in accordance with law.;