1. There are two points that arise on this reference by the Sessions Judge of Ahmedabad. One that may be first disposed of is that referred to in the penultimate paragraph of the letter of the Sessions Judge. The City Magistrate in his order of September 5, 1927, made some remarks to the effect that it was hard upon the husband Punjalal to pay the allowance that he had been ordered to pay under Section 488, Criminal Procedure Code, in July 1926. But the Magistrate says : 'I cannot sit in judgment over the order passed by my predecessor when no change in circumstances Is established.' The Sessions Judge submits that in this the Magistrate was wrong. He says:-
I would submit that, as, under Section 48S of the Code, only a person having sufficient means can be ordered to pay maintenance at all, there was nothing to prevent the Magistrate making a new order, if he found after proper inquiry that the means of the husband were not sufficient to enable him to pay so much.
2. If the Sessions Judge means by this that, apart from any change of circumstances, which could be the basis of a new order under Section 489, Criminal Procedure Code, the Magistrate can inquire whether now and at the time when the order directing Punjalal to pay a maintenance allowance was passed, he had sufficient means to pay such allowance, then we think that that is obviously not correct. It would in effect be a review of the previous judgment of the Court contrary to the provisions of Section 369, Criminal Procedure Code. The judgment of July 1926 in effect holds that the husband had sufficient means to pay the allowance of Rs. 15 per means which was then ordered, and it was only on a change of circumstances of the kind described in Section 489, Criminal Procedure Code, that the Magistrate can make an alteration in the allowance that has to be paid. We think the view taken by the Magistrate was, therefore, correct.
3. The second point is whether the City Magistrate was justified in holding that the husband Punjalal was only liable to pay maintenance up to the date of his application of August 23, 1927, when he alleged that he had divorced his wife Bai Sarasvati. The Magistrate accepted the bare word of Punjalal that he had divorced his wife, and treated that divorce as valid, although Bai Sarasvati on August SO, 1927, put in a counter application denying the validity of any such divorce. The Sessions Judge is of Opinion that the Magistrate was not justified in accepting the mere statement of Punjalal that he divorced his wife, and that, he should have required him to prove that there has been a legal divorce depriving Bai Sarasvati of any further claim upon him. Failing this, in the opinion of the Sessions Judge, the order for maintenance should have been continued in force. The statement about divorce was made in the course of the hearing of an application by Punjalal for the variation of maintenance allowance under Section 489, Criminal Procedure Code. The allegation that there was this divorce would not in itself fall under Section 489, Criminal Procedure Code, because that section, in our opinion, clearly contemplates only case where there is a change in the financial circumstances of the person affected that justifies an alteration in the allowance that has been fixed, (cf. Shah Abu Ilyas v. Ulfat Bibi I.L.R. (1896) All 50 f.b. which rules that this section does not refer to a change in the status of parties entailing a stoppage of the allowance; and also In re Abdul All Inhmailji I.L.R. (1883) Bom. 180 and Mahomed Abid Ali Kumar Kadar v. Ludden Sahiba I.L.R. (1886) Cal. 276. Therefore, the Magistrate should not have introduced this question into his order upon the application of Punjalal under Section 489, Criminal Procedure Code.
4. The question of this divorce can, however, be raised by the husband whenever he is called upon to show why he has failed to comply with the order to pay his wife maintenance under Sub-section (3) of Section 488, Criminal Procedure Code. If the wife applies to recover maintenance for a period covering any time after August 23, 1927, then will be the proper time for the Magistrate to consider this question. It does not appear from the present materials that an application has already been made by the wife in respect of such period. For this reason as well as those given by the Sessions Judge, we think there is proper ground for quashing that part of the Magistrate's order which directed that Punjalal should not be liable for the allowance accruing on or after August 23, 1927.
5. A question has been raised whether such a question should be gone into by a Magistrate in a summary proceeding under Section 488, Criminal Procedure Code. It is clear, however, that, if there is a valid divorce, that effects a change of status which renders the order of the payment of maintenance inoperative after the date of such divorce (cf. the cases already cited and In re Suleman Varsi (1889) I Bom. L.R. 346. Accordingly, if the husband is able to adduce satisfactory evidence that there has been such a valid divorce, then the Magistrate would be justified in acting upon that evidence; and we cannot say that he could properly refuse to interfere, unless the husband produced a decree of a civil Court declaring that he had validly divorced his wife.
6. The part of the Magistrate's order, which directed that Punjalal should not be liable for the allowance accruing on or after August 23, 1927, is quashed,
7. I agree.