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 would be better if I recapitulate some of the facts, which occurred from the time of marriage between the parties. They were married in the year 1956 and have two sons. In 1964 the respondent abandoned the petitioner and started living separately. The petitioner filed a maintenance application for herself as well as for her two sons on February 14, 1967 and obtained an order on June 22, 1967. The respondent sought cancellation of this order but an application on the ground that it was ex parte on November 1, 1968 but that application was dismissed. There was no mention in this application of the fact that he had divorced his wife or that his second son is illegitimate, The petitioner because the respondent was not paying maintenance allowance had to come to Court from time to time for implementing that order during the year 1968-70. Distress warrants had also to be issued and the amount had to be recovered.
4. 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.
5. Mr. Gill for the petitioner-wife contends here that in an application under Section 489, Criminal Procedure Code, it is not open to a criminal Court to annul a marriage or to alter, the amount of maintenance allowance on the ground that the wife was divorced, It is contended by him that the learned Magistrate had no jurisdiction to consider circumstances antecedent to the point of time when the order for maintenance allowance was passed. The case of the respondent is that he had divorced his wife in 1961. The impugned maintenance order was passed on June 22, 1967. Mr. Gill says that this circumstance viz. that the respondent had divorced the petitioner in the year 1961, being1 antecedent to the date when the petitioner had filed her application for maintenance or to the date when the petitioner had obtained the order for maintenance cannot now be considered. He further contends that no such ground was ever taken for execution of the maintenance order uptil now although several applications were filed by the petitioner for recovery of maintenance not only for herself but also for her two sons. On the other hand, Mr. Hattangadi for the respondent contends here that the maintenance order passed by the learned Magistrate is an ex parte order, the summons having been served on the respondent only by pasting on wall and that such an order according1 to him cannot be sustained. At any rate according1 to him there is an order of the Court in terms of the consent terms and on the basis of the consent terms the petitioner is not entitled to any maintenance at all. Mr. Hattangadi also says that the respondent has given divorce to his wife under Mahomedan law; such divorce is valid and if the respondent had declared that he had divorced, that in itself should be taken as a valid divorce. He says that on the basis of such a declaration the petitioner is not entitled to any maintenance at all.
6. Section 489, Criminal Procedure Code is as follows:
489. Alteration in allowance.--(1) On proof of a change in. the circumstances of any person receiving under Section 488 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife or child, the Magistrate may make such alteration, in the allowance as he thinks fit: Provided that if he increases the allowance the monthly rate of five hundred rupees in the whole be not exceeded.
(2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under Section 488 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.
It is, therefore, clear that the first clause of this, section deals with alteration in maintenance allowance as a result of change in the circumstances; whereas the second clause deals with cancellation or variation of the maintenance order in consequence of any decision of a civil Court. It appears from the language of the first clause that change of circumstance envisaged by it is a change of pecuniary or other circumstance of the party paying or receiving allowance, which would justify an increase or a decrease of the amount of maintenance originally fixed. The language does not show that the section contemplates a change in status of the parties. The words 'alteration in the allowance' clearly indicate that the section refers to such a change of circumstance as would necessitate alteration in the amount of allowance and not such circumstance as divorce which entails discontinuance of allowance altogether. Divorce is not certainly a change in circumstance but a change in status. The second clause of this section deals with cancellation or variation of the maintenance order. Under this clause it is the duty of the Magistrate to consider whether the decision of a civil Court has necessitated cancellation or variation of the order passed by a criminal Court under Section 488, Criminal Procedure Code and if in consequence of the civil Court's order, it is necessary to vary or cancel the order, effect must be given to it. The discretion given under this clause to a criminal Court is, therefore, only for this limited purpose.
7. This Court in In re Punjalal Chunllal : AIR1928Bom224 has also taken such a view. It observed:
On an application under Section 489 it is not permissible to the husband to plead that he is not liable to pay maintenance because he has divorced his wife. The plea can properly be urged, and acted upon if satisfactorily established by evidence, on an application by the wife to recover arrears of maintenance under Section 488(3) of the Criminal Procedure Code.
A Full Bench of the Allahabad High Court has also taken a similar view in Shah Abu Ilyas v. Ulfat Bibi I.L.R (1896) 19 All. 50. Moreover, in the instant case the respondent, pleads that he had given divorce to his wife in the year 1961, which year is long before the petitioner had obtained the maintenance order. The Madras High Court in A. 8. Govindan v. Jayammal : AIR1950Mad153 has held and I respectfully agree.
Change in the circumstances means change in the existence of circumstances and not change in proof of circumstances. Where the circumstances which the husband alleges existed even at the time of the order, the order already passed cannot be changed on proof of the circumstances' later on.
Now, therefore, can the respondent plead that the petitioner is not entitled to maintenance now because of change in the status of the parties long before the date of maintenance order? His case is that he has already divorced her in the year 1961 and therefore she is no longer his wife and accordingly she is not entitled to maintenance. Such a plea, in my view, cannot be taken at this stage in the application under Section 489, Criminal Procedure Code.
8. The learned Magistrate appears to have relied on the statement of the respondent in Court that he has already divorced the petitioner and according to him on the basis of such a declaration the petitioner should be treated as having been divorced by her husband from the date on which he gave evidence in Court before him to that effect. I have mentioned above that such a plea, which was not taken, by the respondent in his previous application, cannot now be taken by him in the application under Section 489, Criminal Procedure Code. Section 489 deals with change of circumstances which means a change in pecuniary or other circumstances, which affect paying or receiving allowance and not a change in the status of parties. Mr. Hattangadi then invites my attention to the consent terms, which were produced during the course of the respondent's evidence. Except for production of the consent terms there is no evidence on it which is on record. Mr. Hattangadi contends that at any rate on the basis of the consent terms the petitioner is not entitled to any maintenance at all.
9. The first hurdle in the way of Mr. Hattangadi is that there was no argument whatsoever on the basis of the said consent terms before the learned Magistrate and therefore no such point has been considered by him and it is for the first time here today that Mr. Hattangadi is pressing into service the contents of the so-called consent, terms. This Court, therefore, in other words has to consider for the first time merits or demerits of the consent terms and come to a finding of fact whether under the consent terms the petitioner is or is not entitled to maintenance. In a revision application of this type ordinarily this Court will be reluctant to investigate and come to a finding of fact. It however prima facie appears from record that respondent's notice of motion which came up for hearing in the City Civil Court was dismissed. That was for the purpose of restraining the wife from enforcing the maintenance order. How can then the second notice of motion lie in which it is said that there was a consent order. If we look at the consent order, it is not signed by the learned Judge concerned. It does not appear to be a drawn up order but only consent terms without any signature of the presiding Judge. The consent terms which are on. record also appear to be conditional ones; they are not speaking terms. Mr. Hattangadi says that the petitioner in one of her applications for recovery of dues viz. Case No. 479/N of 1971 accepted having received Rs. 10,000. There is some statement in that application but she says there that those dues were as regards the distress warrants issued against the respondent for recovery of maintenance allowance. No mention of the consent terms is made by her there at all. Merely because the consent terms without even a drawn up order of the learned Judge are on record, it certainly cannot be the basis of cancellation of the maintenance order specially because the consent terms are conditional ones and need further investigation into the matter. I, therefore, do not think that there is any substance in the contention of Mr. Hattangadi.
10. It appears to me, therefore, that the learned Magistrate was in error when he relied on the bare statement of the respondent in Court and discontinued maintenance allowance of the petitioner on the ground that she was divorced by the respondent by a declaration to that effect in Court, This cannot be done in an application under Section 489, Criminal Procedure Code.
11. I, therefore, allow the application filed by the petitioner, set aside the order passed by the learned Magistrate, dismiss the application filed by the respondent under Section 489, Criminal Procedure Code in the lower Court on January 13, 1971 and make the rule absolute.