1. This is a reference that has been made by the District Magistrate, Hyderabad City, setting aside the order of the trial Court, viz., the First City Magistrate, Division No. 1, in proceedings under Section 488, Criminal P.C. It would appear that one Zaibunissa Begum filed an application for the grant of maintenance and after notice the husband did not appear and, therefore, he was set ex parte.
The case was posted for trial on 6-6-1955. But, at the request of the Advocates, that is to say, the Advocate for the wife and the Advocate for husband who later appeared, the hearing was advanced and on that day the husband filed an application stating that he was agreeable to paying Rs. 450/-quarterly as maintenance. This order was taken up in revision before the District Magistrate, and the District Magistrate has rightly held that the wording of Section 488, Criminal P. C, does not warrant an order to that effect.
The maximum amount that could be awarded as maintenance is Rs. 100/-. The words in the Section 'in the whole' have been designedly used to prevent Courts from exceeding the statutory limit. The decision relied on by the Sessions Judge of the Bombay High Court in Palmerino v. Mrs. Palmerino A.I.R. 1927 Bom 46 (A), was a case similar to the one before me in this respect that the Magistrate in that case had awarded maintenance of more than Rs. 100/- P. M.
2. But a further fact has to be considered that the provision in the Criminal Procedure Code has since been amended and the amendment has come into force before the revision has been disposed of. The question is, whether the subsequent amendment could have any effect. Sri Venkatachari who acted as amieus curiae has argued the case. I am of the opinion that at the time the order was passed the Magistrate had no jurisdiction to award maintenance at Rs. 450/- payable quarterly.
The fact that the matter is pending in this Court would not matter because what would be considered will be the question, whether, at the time the application for maintenance was filed, the Magistrate had jurisdiction to award quarterly maintenance of Rs. 450/-. I am therefore in agreement with the Sessions Judge that the order of the Magistrate should be set aside. The reference is accepted.
3. It may be mentioned that the parties were bound over for appearance in this Court and on the day of hearing i. e., 8-8-1957 none of them was present, nor any advocate on behalf of any one of them