MUMTAJALI MOHSINALI Vs. KARIMUNESA HASSANALI

JUDGEMENT

(1.) One of the question raised in this revisional application is a question of law of sufficient general importance on which Courts in India are divided. Two other questions raised pertain to the merits of the case. The petitioner is a husband against whom his wife opponent No. 1 obtained an order of monthly allowance of Rs. 75.00for herself and Rs. 25.00per month for each of her two children. This order was obtained by her on July 31 1969 in an application filed under sec. 488 of the Criminal Procedure Code (hereinafter referred to as the Code). It appears that arrears were payable from January 30 1969 and as the same remained unpaid upto January 30 1970 she gave an application for enforcement of the said order under sub-sec. (3) of sec. 488 of the Code. The arrears which had accumulated were for a period of 12 months at the rate of Rs. 125.00per month. They came to Rs. 1500.00. This application for enforcement of the order was made on January 27 1970 and was numbered as application No. 60 of 1970. As the husband failed to pay up the arrears a warrant for his arrest was issued and the husband was arrested pursuant to the said warrant. But thereafter he was released on bail on giving security for paying up the arrears claimed. The husband thereafter gave an application on May 22 1970 to the Court saying that he had paid up the arrears of Rs. 1500.00to the wife in April 1970 and that a writing in that connection was passed by the wife. He further said that under the Mohammedan Law he had divorced his wife by sending an intimation of divorce in writing by registered post and therefore she was no longer his wife. This application was made under sec. 489 of the Code praying for cancellation of the order of maintenance with regard to the wife only on the ground that he had divorced her with effect from April 10 1970 In the same application he prayed for reducing the monthly allowance fixed for his two children from Rs. 25.00to Rs. 20.00on the ground that he had married again and had a daughter by the second wife whom he has to maintain. He a]so said that his net monthly income was Rs. 108.00. The wife resisted this application saying that she was not divorced and also saying that in addition to the salary alleged by the husband he was also earning Rs. 110.00per month for working in the flour mill of one Gordhanbhai. The husbands application for cancellation as well as the wife's application for enforcement of the order were heard together and disposed of by the learned City Magistrate by a common order. So far as the payment of Rs. 1500.00to the wife alleged by the husband was concerned the learned Magistrate disbelieved the husbands story and found that the said amount was not paid. He therefore ordered a warrant to issue for the arrest of the husband for failure to pay Rs. 1500.00which was the amount of maintenance which had accrued due prior to the alleged divorce.

(2.) On the question of divorce the learned Magistrate agreed. with the husband and found that in fact divorce under the Mohammedan Law had taken place with effect from April 10 1970 but in the opinion of the learned Magistrate the period of Iddat was not over on the date when the husband gave the application for cancellation of the order of monthly allowance under sec. 489 of the Code. That application was given on May 25 1970 Therefore observing that during the period of Iddat the wife's right to get maintenance from the husband remains intact the learned Magistrate refused the prayer for cancellation of the order based 94 on the ground. of divorce. So far as the two children were concerned the learned Magistrate found that the amount as originally fixed was Rs. 50.00per month in all and that after the period of Iddat the opponent will cease to be liable to pay monthly allowance awarded to the wife. He therefore saw no reason to reduce the amount of monthly allowance awarded to the two children. In this view the only order that he passed was with regard to the issue of warrant against the husband on his failure to pay up the arrears within 15 days from the date of the order. Against that order the husband has come in revision.

(3.) As observed earlier three points have been raised for the petitioner-husband and they are: