- (1.) N. B. Asthana, J. Smt. Rukhsana respondent No. 2 filed an application on 13-3-1991 under Section 3 of Muslim Women (Protection of Rights on Divorce) Act, 1986 in the Court of Judicial Magistrate, Roorkee, Hardwar. It was registered as Miscellaneous Case No. 49 of 1991. The case had a chequered history. The petitioner indulged in dialatory tactics with the result that the application could be decided only on 10-8-1992. The petitioner was directed to pay maintenance allowance at the rate of Rs. 1500 per month for 'iddat' period of three months and 15 days amounting to Rs. 8770 along with interest at the rate of 12% per annum to pay the'mahr' of Rs. 125 and to pay Rs. 70,000 for the dowry which was given at the time of marriage. One month's time was given for making the payment failing which interest at the rate of 12 %per annum was also awarded upon the maintenance allowance and the sum of Rs. 70000 awarded for the dowry given at the time of marriage. Aggrieved by this judgment and order the revisioninst has come to this Court.
(2.) A preliminary objection was taken on behalf of the respondent No. 2 that the writ petition is not maintainable because the petitioner has not exhausted the alternative remedies available to him under the Act. Under Section 2 (c) Magistrate has been defined and means a Magistrate of the First Class exercising jurisdiction under the Code of Criminal Procedure, 1973 in the area where the divorced woman resides. The application under Sec tion 3 of the Act has to be filed before such Magistrate. Sub- section (4) of Section 3 lays-down that if any person against whom an order has been made under sub- section (4) falls without sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the amount of maintenance or 'mahr' or dower due in the manner provided for levying fines under the Code of Criminal Procedure, 1973 and may sentence such person, for the whole or part of any amount remaining unpaid after the execution of the warrant, to imprisonment for term which may extend to one year or until payment if sooner made, subject to such person being heard in defence and the said sentence being imposed according to the provisions of the said Code. Section 6 confers power to make rules upon the Central Government. Under rule the evidence is required to be recorded in the manner specified for summary trials under the Code. It nowhere lays-down that the provisions of Section 397 Cr. P. C. would be application to the order passed by the Magistrate nor there is anything to indicate that the provisions of Cr. P. C. would apply to the applications given under the Act. There is also no provision under the Act for filing appeal against the order of the Magistrate. In the circumstance it appears that the petitioner bad no alternative remedy under the Act and, therefore, the writ petition under Aricle 226 of the Constitution is maintainable. No attempt was made to defend the conduct of the petitioner in the court below nor it was argued that the Magistrate was not justified in proceedings with the case ex pane. Two points were argued. The first point was that under the rules framed under the Act the Magistrate should have recorded the evidence in summary form as required by Cr. P. C. and that he was justified in considering the affidavits filed on behalf of opposite party No. 2. The second point was that the Magistrate could have passed the order for return of the marriage present (dower) but he could not have assessed the value of these presents and passed decree for the recovery of Rs. 70000. Rule 4 of the Rules framed under the Act relates to evidence. It says that "all evidence in the proceedings under the Act shall be taken in the presence of the respondent against whom an order for the payment of pro vision and maintenance Mahr or dower or the delivery of property 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 specified for summary trials under the Code. "
(3.) A proviso has been added to this rule which is not relevant for the purpose of this case. This proviso lays-down that the Magistrate can proceed ex parts and can also set aside the ex parte order upon the conditions stated therein. From the above it is clear that the evidence has to be recorded in the manner specified for summary trials under the Code. The Magistrate is not required to take down verbatim evidence of each witness but he is required to make notes of the evidence as it proceeds and to get it signed by the witness. He is also required to sign this memorandum of evidence. There is nothing either in the Act or the rules to show that in ex pane cases evidence can be taken on affidavits. If the affidavits are eliminated then there would be no evidence in support of the application moved by the op posite party No. 2. The Magistrate committed a patent error in accepting evidence on affidavits and in this view of the matter judgment passed by him cannot be sustained.;