GULROZBANU KARMALLI Vs. KARMALLI

JUDGEMENT

(1.) THE petitioner is wife of respondent No. 1 who had applied in the Court of the learned Presidency Magistrate, 24th Court, Borivli, Bombay under Section 489, Criminal Procedure Code, for modification of the maintenance order passed against him. His case is that he was ordered ex parte on June 22, 1967, to pay maintenance to the petitioner -wife and his two sons at the rate of Rs. 250 and Rs. 125 for each of his two sons per month. The first ground given by him for modification was that his financial condition has now changed and the entire estate of which he was owner is now being administered by a Court Receiver. The second ground was that he has gone old and his eye sight is weak and therefore he is unable to do any work. The third ground was that he has divorced his wife and therefore she is not entitled to maintenance. The fourth and the last ground was that his second son Rafi -ud -din is illegitimate and therefore he is not entitled to any maintenance allowance.

(2.) HE has also stated that he had filed a declaratory suit against his wife in the City Civil Court at Bombay and had also prayed for an injunction. The learned Magistrate appears to have been swayed by the fact that the respondent by his declaration in the said suit has divorced his wife because he is a Muslim and that that divorce is valid. After considering the validity of divorce he considered the date of giving divorce. For this purpose he considered the plaint in the City Civil Court, which is dated January 6, 1970, and the date on which he gave evidence stating that he had already given divorce to his wife. The learned Magistrate thought that January 19, 1972 should be considered that date and it is one on which he gave evidence on oath in Court declaring openly that he divorced his wife. Accordingly, therefore, he allowed the application of the respondent in so far as the maintenance allowance to his wife is concerned but rejected his application with regard to his two sons. This order of the learned Magistrate is therefore now challenged here by the petitioner -wife. The only point that arises here is whether that order is legal and valid.

(3.) IT is in these circumstances that the present application was made by the respondent on January 13, 1971 under Section 489, Criminal Procedure Code for modification of the maintenance order. Although the first application which was made by the respondent for cancellation was not on the ground of divorce, yet the present application is on the ground that he had already divorced his wife in the year 1961 and also on the ground that he had filed a suit in the City Civil Court for a declaration that he had already divorced her and for injunction against the petitioner restraining her from enforcing the maintenance order.