SHAMSHUDDIN Vs. ZAMINA BIBI

JUDGEMENT

(1.) This criminal revision application iS directed against orders passed by the S.D.M. Of Chandauli .West (District Banaras) on an application for realisation of maintenance awarded Under Section 488, Cri. P. C

(2.) The opposite party Smt. Zamina Bibi granted Rs. 50/- the month as maintenance for herself and her shiee sons by an order dated 37-1-1959. On 27-7-1959 she applied for payment of the arrears that had accrued) but the husband Shamshuddin (the present applicant) pleaded in reply that be had divorced her by means of a notice sent on 20-2-1959. The learned Magistrate came t0 the conclusion that the divorce was not effective until 21-8-1959, when it came to the notice of the wife through tile assertion: made by Shamshuddin in court and he accordingly allowed her maintenance upto 21-11-1959 (i.e. Upto 21-8-1959 plus three months to cover the period of Iddat).

(3.) On behalf of the opposite party, Smt. Zamina Bibi, an attempt has been made to argue that the Magistrate should have disregarded the divorce altogether. If, is contended that an order awarding maintenance Under Section 488, CrIPC can only be varied or discontinued in accordance With the provisions of Section 489, Cri. P, C. and that cl, (i) of Section 489 relates not to discontinuance but only to variation of the amount due to a change in pecuniary circumstances, while el. (2) of the Section can be invoked only when a decision is given by a cornpone civil court, it is suggested therefore that an oral divorce pronounced by a Muslim husband cannot be acted upon by a Magistrate as the basis for discontinuing a maintenance allowance unless the husband obtains a declaration from a competent civil court 'to confirm the fact that he has divorced his wife. But the case of Shah Abu Ilyas v. Ulfat Bibi ILR 19 All "50 certain observations in which were relied upon by the opposite party in support of this argument, actually provides authority for the opposite view, for it was laid down therein that a court which is asked to enforce an order for maintenance Under Section 488 is bound to entertain a plea of divorce and if it finds that the plea is established must decline to enforce the maintenance order for any period subsequent to the date when the marriage ceased to subsist between the parties (making allowance, in, the case of Muslims, for tile expiry of the period of Iddat). This view, if I may say so with respect, offers aneminently reasonable assessment of he scope of Section 488: under this Section a Magistrate can order a person to make a monthly allowance for the maintenance of his wife but obviously if the wife ceases to be a wife by reason of divorce, the order for her maintenance must automatically cease to be enforceable thereafter.