MARIYUMMA Vs. MOHAMMED IBRAHIM

JUDGEMENT

(1.) THIS revision is against an order passed by the Judicial Magistrate of the First class, Kodungalloor in a petition under Section 125 of the Cr. P. C. for the award of maintenance moved by a divorced woman and her 3 children. The magistrate found that the children are eligible to get maintenance at the rate of rs. 45/-, Rs. 35/-and Rs. 30/- per mensem respectively while the first petitioner the divorcee was not entitled to any maintenance. This was so found because, according to the court below, adultery on the part of the first petitioner had been proved by the evidence in the case and that disentitled her to the award of any maintenance. This revision comes up before the Full Bench because a single Judge of this Court directed reference to the Full Bench in view of the important questions arising for decision in the case.

(2.) THE revision is by all the petitioners in the court below. The first petitioner claims that she too must be found entitled to maintenance until her remarriage while on behalf of petitioners 2 to 4 she claims enhancement of the quantum of maintenance awarded by the court below.

(3.) EVIDENTLY the learned Magistrate who declined to award maintenance to the first petitioner on the ground that she was living in adultery, was relying on section 125 (4) of the Cr. P. C. The questions before us as urged by learned counsel Sri P. V. Ayyappan, appearing for the petitioners are (1) whether section 125 (4) would be applicable to the case of a woman who 'had been divorced or whether it is applicable only to the female epouse in a subsisting marriage and (2) whether the words "is living in adultery" in Section 125 (4)should be taken to indicate that proof must be not of any past conduct but of the present.