HAJUBEN SULEMAN Vs. IBRAHIM GANDABHAI

JUDGEMENT

(1.) This matter arises out of an application filed under sec. 127(3) of the Code of Criminal Procedure 1973 (hereafter referred to as the Code) and raises an interesting question of general importance. The matter has been referred to the Division Bench by our learned brother A. D. Desai J. The facts may now be stated.

(2.) Petitioner No. 1 in this application is divorced wife of opposite party No. 1 and petitioner No. 2 is their daughter. The parties are Mohmedans. The wife filed Misc. Criminal Application No. 313 of 1974 before the learned Judicial Magistrate First Class Bhavnagar under sec. 125 of the Code for monthly allowance both in respect of herself and her minor daughter petitioner No. 2 for the purpose of their main- tenance. In this application the learned Magistrate by his order dated August 20 1975 fixed monthly allowance for the wife at Rs. 50.00 and that for the daughter at Rs. 25.00. It was awarded from the date of the application. Thereafter the wife had to file Misc. Criminal Application No. 293 of 1975 for recovery of arrears of maintenance of Rs. 765.00 from 9 to 5-11-1975. The husband as against this application filed Misc. Criminal Application No. 315 of 1975 stating inter alia that the petitioner wife was divorced on April 10 1974 by giving Talaq according to Mohmedan law. He further alleged that the factum of his having given divorce by Talaq to the petitioner has been accepted in Maintenance Application i.e. Misc. Criminal Application No. 313 of 1974 where the monthly allowance was fixed. It was further alleged that the Court in that case held that fixed petitioner was entitled to the maintenance allowance only till she received her customary dues and that during the pendency of the application for maintenance the husband had deposited into the Court an amount of Rs. 100.00 as maintenance for the Iddat period on July 23 1975 It was further alleged that the amount of Mahar was paid to the petitioner wife at the time of marriage. Then it was alleged that even though customary dues of Rs. 100.00 were paid to the petitioner during the pendency of the earlier application through oversight that fact was not brought to the notice of the Court with the result that the Court passed an order of monthly allowance on August 20 1975 as stated above. On these grounds therefore the husband prayed for cancellation of the order of monthly allowance.

(3.) Now one thing must be made clear as regards the averments made by the husband in his Misc. Criminal Application No. 315 of 1975 that the Court in the previous proceedings held that the wife was entitled to maintenance only till she received customary dues. On going through the judgment in Misc. Criminal Application No. 313 of 1974 by which monthly allowance was fixed we find nothing to show that the Court ever made an observation to the above effect. Therefore the averments which give an impression that in the earlier proceedings viz. Misc. Cri- minal Application No. 313 of 1974 the Court made a conditional order about payment of monthly allowance limited till the time the husband paid customary dues to the wife are not borne out by the order of the Court in that proceeding. A contention was raised before the Court in paragraph 6 regarding sec. 127(3)(b) of the Code on behalf of the husband at the time of arguments. The Court rejected that contention in the following words: Shri Lalani submitted at the time of argument that he pays the amount of Iddat to day; but there is no evidence that he paid it. Hence the Court can pass the order as the ingredients of sec. 127(3)(b) of the Code of Cri. Procedure are not established. The final order also is not limited in point of time till the wife was paid the customary dues by the husband.