IN RE: MOHAMED RAHIMULLAH AND ANR. Vs. STATE

JUDGEMENT

(1.) THIS is a reference by the Chief Presidency Magistrate, under Section 432 of the Code of Criminal Procedure, made in the following circumstances. Kurshid Begum filed an application under Section 488 of the Code of Criminal Procedure against her husband Mohamed Rahimulla for maintenance in M.P. No. 221 of 1945. Maintenance was awarded. On 5th January, 1946, Mohamed Rahimulla filed M.P. No. 6 of 1946, alleging that he had divorced his wife and praying for the cancellation of the order of maintenance made in M.P. No. 221 of 1945, on the ground that she had ceased to be his wife. As it was admitted by Mohamed Rahimulla before the Court that he had not paid the amount of maintenance for the period of Iddat, his application for the cancellation of the order of maintenance was rejected. Against the order of rejection Mohamed Rahimullah filed Crl. R.P. No. 193 of 1946 (Crl. R.C. No. 199 of 1946) in this Court which was dismissed by Kuppuswami Ayyar, J. In dismissing the application the learned Judge followed the decision of this Court in Muhammad Anser Sahib v. Zubeida Bee, (1933) M.W.N. Cri. 121 where it was laid down that divorce effects not a change in circumstances but a change in the status. After dismissal of the Criminal Revision Petition here, Mohamed Rahimulla paid Kurshid Begum the amount of maintenance for the period of Iddat and communicated to her in writing the fact of his having divorced her irrevocably in conformity with the requirements of the Mahomedan law. Based upon these averments, he filed a fresh application M.P. No. 332 of 1946 in the Court of the Chief Presidency Magistrate, contending that the divorce had become irrevocable, that Kurshid Begum had ceased to be his wife and that therefore the order of maintenance passed in M.P. No. 221 of 1945 should be cancelled. The learned Chief Presidency Magistrate in dealing with this application felt confronted with a difficulty arising out of the order of this Court in the Criminal Revision Petition. Rahimullah had, according to his averments, absolutely divorced his wife, so that the relationship of husband and wife between them had ceased effectively. He had paid the maintenance for the period of Iddat and had conformed to all the requirements of the personal law applicable to the parties and had also duly communicated the fact of the divorce to his wife. But the order of this Court in Crl. R.C. No. 199 of 1946 decided by Kuppuswami Ayyar, J., had, according to the Magistrate, indicated that it was not a case in which the Magistrate could pass an order of cancellation under Section 488 of the Code of Criminal Procedure, since the divorce had not effected a change in the circumstances within the meaning of Section 489. The Chief Presidency Magistrate has therefore referred to this Court the question of law arising in the matter with particular reference to the ruling given in the Criminal Revision Petition. As Kurshid Begum was not represented, I appointed Mr. B. Pocker as amicus curiae and he has given me valuable assistance.

(2.) IT is assumed for the purpose of this reference that there is a valid and irrevocable divorce in force between the parties which has been communicated to the wife in the manner required under the law and that the maintenance for the period of Iddat after the date of the divorce was duly paid. These are facts which the Magistrate will have to find upon the evidence before giving effect to the decision on the question of law raised by him.

(3.) THE answer to this question is straight and simple. The foundation upon which Section 488 and Section 489 of the Criminal Procedure Code rest, so far as granting of maintenance by the husband to the wife is concerned, is that the relationship of husband and wife subsists between them. When that relationship is lawfully dissolved and there is no marital tie whatsoever subsisting in fact or in law between them, it is lard to see either in reason or upon any canon of justice or even upon the language of Sections 488 and 489 how the husband can be directed to continue to maintain his divorced wife.