HABEEBULLA Vs. SHAKEELA

JUDGEMENT

(1.) The appellant in the second appeal the husband who instituted the suit- admittedly married the respondent defendant on 10-6-1976. The tragedy in the force of an infantile martality which befall the child born to them caused friction between the parties and later to wasteful litigations. The wife caused to be sent a notice on 20-2-1978 seeking a divorce. The husband retaliated by his reply dated 15-3-1978, demanding her to come and reside with him. The wife did not relent. The husband married a second time, as well permitted by his personallaw. The wife then moved the criminal court for maintenance. Divorce was sought for in civil proceedings. Ultimately divorce was granted by the Civil Court, and maintenance by the criminal court, at the rate of Rs. Us8/- per month invoking section 125 of the Criminal Procedure Code.

(2.) The husband then came to the civil court seeking to establish the supremacy of his personal law and emphasising the summary character of the proceedings for maintenance under the Criminal Procedure Code. The prayer in the plaint was to set aside the order of the criminal court, and for an injunction restraining the defendant from executing that order. The plea succeeded with the trial court but failed in the appellate court.

(3.) In a commendable well-discussed judgment, the appellate court referred to the frame of the suit and the substantial character of the reliefs claimed therein. Referring to the decision in Gaur; Devi v. Bishwanath1, the appellate court held that a civil court has no jurisdiction to set aside an order of a Magistrate Court granting maintenance under the Criminal Procedure Code, when there was no allegation of fraud as regards the order of the Magistrate. Other judicial decisions including one of this court rendered by Krishna Iyer, J. in Shakulanadu v. Subaida Beevi2, were referred to by the appellate court. The husband in this case had no case that the order of the Criminal Court was obtained by fraud. A divorced wife is also entitled to maintainable (sic.). The suit was ultimately dismissed.