MUHAMMED ISMAIL Vs. SARAMMAL

JUDGEMENT

(1.) The revision petitioner is the respondent in M.C. 38 of 1957 of the Adoor First Class Magistrates Court against whom an award for maintenance was passed under S.488, Criminal Procedure Code. The order is dated 30th October 1958. Subsequently the respondent filed several petitions alleging that a valid divorce was effected between the petitioner and respondent on 3-12-1958 and as such the petitioner is not thereafter entitled to claim maintenance. He had also filed a list of witnesses and produced some records in support of his plea. The application was objected to by the petitioner who denied the alleged divorce and also questioned the validity of it. The petitions were dismissed by the Magistrate by the order challenged in revision. The learned Magistrate while holding that a valid divorce under the Mohammadan Law is a change in the circumstances entitling the Magistrate to refuse to enforce a maintenance order, dismissed the application on the ground that as the divorce is denied and its validity disputed, the Magistrate is not bound to enquire into the question and directed the party to produce an order of the civil court that a valid divorce has been effected

(2.) The only question that arises for determination and the only one that was argued before me is whether the Magistrate has jurisdiction to enquire into the truth and validity of the divorce.

(3.) The provisions of Chapter XXXVI of the Criminal Procedure Code so far as they relate to the maintenance of wives, contemplate the existence of conjugal relation as a condition precedent to an order of maintenance and on general principles it follows that as soon as the conjugal relation ceases, the order of maintenance must also cease to have enforceable effect. Though there was some difference of opinion between the courts as to whether the words of S.489 (1) are comprehensive enough to take in an application to cancel an order of maintenance on the question of divorce, the view that holds the ground at present seems to be that the words change in the circumstances and alteration in the allowance are wide enough to take in without doing violence to the language, divorce and cancellation of allowance (Vide AIR 1955 Andhra 1, 1947 Mad. 461). If the Magistrate is empowered under S.489 to alter the amount payable to nothing, i. e., set aside the order on account of a divorce or termination of the relationship of husband and wife, there is no justification for holding that he has no jurisdiction to enquire into the question of the truth or validity of the divorce. It is conceded that in an enquiry under S.488 the Magistrate is competent to go into the question of the truth or validity of the marriage. There is nothing in S.489 to divest the Magistrate of that jurisdiction. S.489 empowers the Magistrate to alter or modify the order of maintenance on account of (i) a change in the circumstance of the party paying or receiving the maintenance or (ii) any decision of a competent civil court. The words on proof of a change in the circumstances indicate that before any alteration is made in the allowance it must be proved to the satisfaction of the Magistrate that a change occurred in the circumstances of the person receiving the allowance or paying it. It therefore follows that if the question of divorce, is raised, the court is bound to decide oh the womans status.