ASSAINAR Vs. KADEESUMMA

JUDGEMENT

(1.) This petition was filed under section 482 of the Code of Criminal Procedure, here-in-after referred to as the Code, for setting aside an order passed under section 127(1) of the Code enhancing the monthly maintenance from Rs. 10/- to Rs. 300/-.

(2.) Second respondent was the wife of the petitioner. First respondent is the mother of the second respondent. At present the second respondent is sick and disabled. The marriage between the petitioner and the second respondent was some where in 1957. Alleging desertion, the second respondent filed M.C. 51/59 before Judicial First Class Magistrate, Quilandy against the petitioner under section 488 of the old Code claiming maintenance for herself and her minor child born through the petitioner. The Magistrate ordered maintenance at the monthly rate of Rs. 10/- to the second respondent and Rs. 6/- to the child. The order was on 25-4-1959. The parties are Muslims. Immediately thereafter the petitioner divorced the second respondent. Divorce was on 13.11-1959. The petitioner then married another lady and it is said that he is having four children by that marriage. The son of the second respondent born to the petitioner has by this time become a major.

(3.) On 29.11-1 982, after the commencement of the new Code, the second respondent filed M.C. 113 of 1982 against the petitioner for maintenance in her new status as divorced wife under the extended definition of wife in section 125. That petition was opposed by the petitioner on the ground that on account of the existence of the earlier order for maintenance in M.C. 5 1/59 she is not entitled to file another petition for maintenance. That contention was found in favour of the petitioner and the petition for maintenance was dismissed. Thereafter, on behalf of the second respondent, her mother, who is the first respondent, filed M.C. 77/83 against the petitioner, claiming it to be one under section 127(1) of the new Code, for enhancement of the rate of maintenance awarded in M.C. 51 of 1959. The petitioner resisted that claim, among other things, on the ground that a petition for enhancement under section 127(1) will not lie because there is no subsisting order for maintenance in her favour. But both sides let in evidence required for a regular petition under section 125 of the Code. The contention of the petitioner was repelled and the respondent was found entitled to get enhanced maintenance. Maintenance was enhanced to Rs. 300/- per month on the basis of the evidence. Against that order the petitioner filed Criminal R.P. 42/84 before the Sessions Judge, Kozhikode. By order dated 30-11-1984, the Sessions Judge dismissed the revision petition. It was under these circumstances that the petitioner approached this Court with a petition under section 482 of the Code for the above reliefs.