JAMES FREDRICK ROWLAND Vs. RAYNAH ROWLAND NEE GLOVER

JUDGEMENT

(1.) This petition by the husband James Fredrick Rowland is directed against certain orders of a Magistrate before whom a proceeding under Section 488 of the Code of Criminal Procedure is pending at the instance of his divorced wife Mrs. Raynah Rowland Nee Glover. It appears that on 12-4-1954 there was a decree of divorce by the District Court which was confirmed by the Patna High Court on 22-3-1955. The petition under Section 488 of the Code of Criminal Procedure for the maintenance not of the wife herself, but of a child about 13 years old who is now in England was filed on 23-7-19561 Thereafter, the husband, the present petitioner filed a suit on 11-3-1957 in the Muzzaffarpur court. That Court passed an interim order under Section 44 of the Indian Divorce Act directing the petitioner not to proceed with this proceeding under Section 488 of the 'Code of Criminal Procedure. When the learned Magistrate, on that order being shown to him, wanted to proceed with the case in spite of the order, this petition was filed on behalf of the husband.

(2.) The first point raised on behalf of the petitioner is that in view of Section 1 (2) of the Code of Criminal Procedure the proceeding under Section 488 of the Code of Criminal Procedure cannot go on because of the provisions of Section 44 of the Indian Divorce Act. The relevant portion of Section 1 (2) of the Code of Criminal Procedure is as follows :

(3.) It is argued that this means that in view of Section 44 of the Indian Divorce Act, Section 488 of the Code of Criminal Procedure is inapplicable to persons to whom the Indian Divorce Act applies. 1 think the contention is totally unfounded. The clear meaning of this part of Sub-section (2) is that if there is no specific, provision to the contrary, nothing that there is in the Code of Criminal Procedure will affect any special provision in force, or in other words, there being nothing to the contrary the provisions of Section 188 of the Code of Criminal Procedure will have no effect on Section 44 of the Indian Divorce Act. There is nothing here even to suggest that the proceedings under Section 44 of the Indian Divorce Act will have any effect on the proceeding under Section 488 of the Code of Criminal Procedure.