DOLNA KHATOON Vs. JAMALUDDIN AHMED

JUDGEMENT

(1.) THE wife petitioner impugns before me an order passed by Shri B. N. Biswas, Sub-Divisional Judicial magistrate, Jangipur in Execution case No. 5 of 1987 arising out of a proceeding under sections 125/128 of the Code of Criminal Procedure.

(2.) THE petitioner initially filed a proceeding for maintenance of herself and of her minor daughter against the husband opposite party no. 1 before the learned Sub-divisional Judicial Magistrate, Jangipur in. Case No. M. R. 558 of 1983 under Section 125 Cr. P. C. The Learned Magistrate granted maintenance to the wife at the rate of Rs. 80 per month for herself and at the rate of Rs. 60 per month for her minor daughter. The husband opposite party no. 1 moved against this order before this Hon'ble Court Crl. Rev. No. 1760 of 1984. The wife also moved in revision against inadequacy of quantum of maintenance in this Court in Crl. Rev. 1555 of 1984. Both these cases, were disposed of by S. Ahmed, J. on 10. 2. 86 whereby his Lordship dismissed the revisional application as filed by the husband opposite party no. 1 and allowed the revisional application as filed by the wife petitioner and increased the quantum of maintenance to Rs. 300/- per month for the wife and Rs. 150/- per month for the minor daughter. As regards arrears of maintenance the husband was directed to liquidate the same by way of instalments at the rate of Rs. 150/- per month which was directed to be paid along with the current maintenance and if any amount had already been paid, the same was directed to be adjusted against arrears amount. The husband became wiser on coming into operation of the Muslim Women (Protection of Rights on Divorce) Act, 1986. He filed a petition under Section 12 7 of the Code of Criminal Procedure read with sections 3 to 7 of the Muslim Women (Protection of Rights on Divorce ). Act, 1986 contending inter alia that he has divorce, his wife and was not bound to give maintenance any more to her. When the wife petitioner filed a proceeding under Section 128 of the Code of Criminal Procedure for realisation of the arrears due to her, her claim was countered by the husband opposite party No1 with a prayer for stay of the said proceeding and by an order dated 9. 4. 87 the learned Sub divisional Judicial Magistrate, jangipur allowed the said prayer till final disposal of Misc. case No. 61 of 1987 which was filed by the husband petitioner under Section 12 7 of the Code of Criminal Procedure read with section 3 and 7 of the Muslim women (Protection of Rights on Divorce) Act, 1986 for setting aside or altering the previous order for maintenance as passed against the husband petitioner.

(3.) I have given my anxious consideration to facts and circumstances of the case and I am of the firm view that the maintenance of the minor daughter cannot in any manner be stifled with the filing of the application under section 12 7 of the Code of Criminal Procedure read with sections 3 and 7 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. As regards the wife who is claimed to have been divorced subsequently by the husband, the factum of such divorce has to be proved by' cogent evidence in a proceeding under section 127 of the Code of Criminal Procedure and till such time the said application under section 12 7 of the Code of Criminal Procedure stands allowed, the present proceeding under section 128 Cr. P. C. for execution and enforcement of the maintenance should not in any manner be stopped, keeping in view the fact that the claim for maintenance should in no manner be stifled unless and until the order of maintenance as initially passed in favour of the wife and the minor daughter and as upheld by the High Court with the increase of quantum, is not altered 'by the learned Magistrate on proof of the 'subsequent event's of the supervening circumstances.