KALAVANTIBAI TEKCHAND BHAVANI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS revision application arises out of an order passed, by the learned Presidency Magistrate, 3rd Court, Bombay, refusing to direct recovery of the amount due under an order passed for maintenance in favour of the petitioner and her children under Section 488, Criminal P. C. The learned Magistrate has with some reluctance passed an order dismissing the application filed by the petitioner.

(2.) THE few facts which are necessary to understand the grounds on which the learned Magistrate has dismissed the application are these:-- The petitioner is the wife of the respondent. She filed an application in the Court of the Resident Magistrate, First Class, Kirkee Cantonment, Poona, for an order under S. 488, Criminal P. C. , for maintenance of herself and of her three children. On 19-11-1949, the learned Resident Magistrate passed the following order:

(3.) ON principle, the view taken by the-learned Magistrate appears to be unsustainable. It is true that in dealing with an application under Section 488, Criminal P. C. submitted by more persons than one the Magistrate should, if ha is satisfied that they are entitled to maintenance, make an order directing payment of maintenance at specified rates in favour of each of the persons whom, the respondent is bound to maintain. An order which directs a consolidated payment to be made for the benefit of several persons entitled to maintenance under Section 488, Criminal P. C. is undoubtedly on I irregular order. But if the order has been made and acquiesced in, it cannot be said that the order is inexecutable under Section 490, Criminal P. C, If the order is executable when there is no change of circumstances since the date of the order, I fail to see why when there has been change of circumstances the Magistrate who is asked to execute the order is not entitled to so amend or modify the order in the light of change of circumstances. Under Sub-Sections (4) and (5) of Section 488 it is open to a Magistrate to cancel an order already passed, if it is found that the wife is living in adultery or without sufficient reason refuses to live with her husband or that the husband and wife are living separately by mutual consent. Similarly, under Section 489, Criminal P. C. it is open to a Magistrate on proof of change in the circumstances of any person receiving under Section 488 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife or child, to make such alteration in the allowance as the Magistrate thinks fit. That provision confers jurisdiction upon a Magistrate to alter the rate of maintenance awarded when there is change of circumstances.