QAYYUM KHAN Vs. NOORUNNISA BEGUM

JUDGEMENT

(1.) THE petitioner is the husband of the respondent. They are Muslims. The respondent filed a petition under Section 125 of the Criminal P. C. and she was awarded maintenance at the rate of Rs. 50/- per mensum from 3-3-1976. She filed a petition for execution, claiming arrears of maintenance of Rupees 871-40 P. from 3-3-1976 till the end of July, 1977. The petitioner deposited Rs. 1,100/- in the court towards her 'mahr' or dower amount. She wanted that the arrears might be paid out of that amount and to direct the Indian Airlines, Begum-pet, to deduct from the salary of the petitioner Rs. 50/- every month towards her maintenance and pay it to her.

(2.) IN his counter, the petitioner alleged that the respondent was living in adultery even prior to the passing of the maintenance order and therefore she was not entitled for maintenance. He also alleged that the amount of Rs. l,100/- deposited by him in the court was for the specific purpose of payment of 'mahr' amount and therefore the arrears of maintenance claimed by the respondent cannot be paid to her out of that amount.

(3.) THE learned Magistrate held that the question of adultery of the respondent would be enquired into later on. (I am now given to understand that subsequently the learned Magistrate held that the respondent was not guilty of adultery ). When it was urged by the petitioner that the arrears of maintenance cannot be paid out of the 'mahr' amount of Rupees 1,100/- deposited for that purpose, the learned Magistrate relying upon the decision in Hajuben Suleman v. Ibrahim Gandabhai (1977) 18 Guj LR 133, held that unless the respondent voluntarily received the 'mahr' amount and maintenance amount for the period for which she was entitled under her personal or customary law, she could not be forced to receive the 'mahr' amount even if it was deposited by her husband in the court and she had an option to continue to claim maintenance until her lifetime or until she remarried. Therefore, the learned Magistrate directed that a sum of Rs. 871-40 P. , shall be paid to the respondent out of Rs. 1,100/- deposited in the court by the petitioner. He had also observed in his order that the petitioner had not paid a single pie to the respondent so far towards maintenance. Questioning that order, the petitioner has filed this revision.