BABOO ALIAS AKBAR HUSAIN Vs. STATE

JUDGEMENT

(1.) THIS reference has been made by learned Addl. Sessions Judge, Farrukhabad, with a prayer that the order of the City Magistrate be modified in this way that instead of Rs. 1800/ - a sum of Rs. 210/ - as arrears of maintenance be ordered to be recovered from the applicant.

(2.) THE facts giving rise to this reference are that Smt. Mukhtari Begum was married to Baboo alias Akbar Husain. She filed an application under Section 488, Code of Criminal Procedure for maintenance. That case was contested by Baboo alias Akbar Husain, and ultimately, her application was allowed on 18th April, 1968, by the Magistrate concerned who directed that a sum of Rs. 30/ - as maintenance would be payable from the husband to the wife. It appears that on 24th of May, 1973, Smt. Mukhtari Bagum moved an application in the Court of the Magistrate with a prayer for issue of a warrant for realisation of Rs. 1800/ - inasmuch as not a single penny was paid to her from the date of the order up to the date of the application. When notice was issued to the husband, he filed an objection on 6th July, 1973, raising two points. The first point was that he had divorced Smt. Mukhtari Begum on 1st January, 1972. The second point was that demand for more than a year regarding maintenance amount was barred by Proviso no. 2 to sub -section (3) of Section 488, Code of Criminal Procedure on account of limitation. The City Magistrate repelled both these contentions, and ordered that a sum of Rs. 1800/ - be realised from Baboo for payment to Smt. Mukhtari Begum. Against that order, Baboo went up in revision. The learned Additional Sessions Judge held that the Magistrate rightly came to the conclusion that divorce was not proved as having been given with effect from 1st January, 1972, but on the basis of a ruling of this Court reported in Sattar Sheikh v. Mst. Sahdunnisa, 1969 ALJ 415, he came to this conclusion that divorce should be deemed to have been given by Baboo to Smt. Mukhtari Begum on 6th July, 1973 when he filed objection in which he mentioned that he had divorced Smt. Mukhtari Begum. On the question of quantum of maintenance, he held that on account of limitation provided in Proviso no. 2 to sub section (3) of Section 488, Code of Criminal Procedure, the maintenance amount for more than a year is barred by limitation and, as such, Smt. Mukhtari Begum could be allowed maintenance amount with effect from 24th May, 1972. To this period, he added the date of the divorce, namely, 6th July, 1973, and further added a period of 4 months and 10 days as period of Iddat. At the rate of Rs. 30/ - he held that the amount of maintenance payable to Smt. Mukhtari Begum would be only Rs. 210/ - and consequently he made a reference for modification of the order passed by the City Magistrate.

(3.) THE learned Additional Sessions Judge was also correct when he held that maintenance amount prior to 24th May, 1972, could not be granted inas much as Section 488, sub -section (3) proviso 2 lays down that :