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Mumtajali Mohsinali Vs. Karimunesa Hassanali and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1972CriLJ77; (1972)GLR128
AppellantMumtajali Mohsinali
RespondentKarimunesa Hassanali and anr.
Cases Referred and Mahomed Abid Ali v. Ludden Sahiba
Excerpt:
.....arrested pursuant to the said warrant. the husband's application for cancellation as well as the wife's application for enforcement of the order were heard together and disposed of by the learned city magistrate by a common order. he therefore ordered a warrant to issue for the arrest of the husband for failure to pay rupees 1500/- which was the amount of maintenance which had accrued due prior to the alleged divorce. in this view the only order that he passed was with regard to the issue of warrant against the husband, on his failure to pay up the arrears within 15 days from the date of the order. the evidence of the husband clearly shows that he gets rs. therefore the second and the third contentions raised on behalf of the petitioner will fail. on such magistrate being satisfied as..........in the flour mill of one gordhanbhai. the husband's application for cancellation as well as the wife's application for enforcement of the order were heard together and disposed of by the learned city magistrate by a common order. so far as the payment of rs. 1500/- to the wife alleged by the husband was concerned the learned magistrate disbelieved the husband's story and found that the said amount was not paid. he therefore ordered a warrant to issue for the arrest of the husband for failure to pay rupees 1500/- which was the amount of maintenance which had accrued due prior to the alleged divorce.3. on the question of divorce the learned magistrate agreed with the husband and found that in fact divorce under the mohemmedan law had taken place with effect from april 10. 1970. but in.....
Judgment:

D.P. Desai, J.

1. One of the Questions raised in this revisional application is a question of law of sufficient General importance on which High Courts in India are divided. Two other Questions raised pertain to the merits of the case.

2. The petitioner is a husband against whom his wife opponent No. 1 obtained an order of monthly allowance of Rs. 75/- for herself and Rs. 25/- per month for each of her two children. This order was obtained day her on July 31. 1969 in an application filed under Section 489 of the Criminal Procedure Code (hereinafter referred to as the Code). It appears that arrears were payable from January 30. 1969 and as the same remained unpaid upto January 30, 1970. she Save an application for enforcement of the said order under Sub-section (3) of Section 488 of the Code. The arrears which had accumulated were for a period of 12 months at the rate of Rs. 125/- per month. They came to Rs. 1500/-. This application for enforcement of the order was made on January 27. 1970 and was numbered as application No. 60 of 1970. As the husband failed to pay up the arrears a warrant for his arrest was issued and, the husband was arrested pursuant to the said warrant. But thereafter he was. released on bail on giving security for paying up the arrears claimed. The husband thereafter gave an application on May 22, 1970 to the court saying that he had paid up the arrears of Rs. 1500/- to the wife in April 1970 and that a writing in that connection was passed by the wife. He further said that under the Mohammedan Law he had divorced his wife by sending an intimation of divorce in writing by registered post and therefore she was no longer his wife. This application was made under Section 489 of the Code praying for cancellation of the order of maintenance with regard to the wife only on the ground that he had divorced her with effect from April 10, 1970. In the same application he prayed. for reducing the monthly allowance fixed for his two children from Rs. 25/- to Rs. 20/- on the ground that he had married again and had a daughter by the second wife whom he has to maintain. He also said that his net monthly income was Rs. 108/-. The wife resisted this application saying that she was not divorced and also saving that in addition to the salary alleged by the husband he was also earning Rs. 110/- per month for working in the flour mill of one Gordhanbhai. The husband's application for cancellation as well as the wife's application for enforcement of the order were heard together and disposed of by the learned City Magistrate by a common order. So far as the payment of Rs. 1500/- to the wife alleged by the husband was concerned the learned Magistrate disbelieved the husband's story and found that the said amount was not paid. He therefore ordered a warrant to issue for the arrest of the husband for failure to pay Rupees 1500/- which was the amount of maintenance which had accrued due prior to the alleged divorce.

3. On the question of divorce the learned Magistrate agreed with the husband and found that in fact divorce under the Mohemmedan Law had taken place with effect from April 10. 1970. but in the opinion of the learned Magistrate the period of 'Iddat' was not over on the date when the husband save the application for cancellation of the order of monthly allowance under Section 489 of the Code. That application was given on May 25, 1970. Therefore, observing that during the period of 'Iddat' the wife's right to get maintenance from the husband remains intact, the learned Magistrate refused the prayer for cancellation of the order based on the ground of divorce. So far as the two children were concerned the learned Magistrate found that the amount as originally fixed was Rs. 50/- per month in all and that after the period of 'Iddat' the opponent will cease to be liable to pay monthly allowance awarded to the wife. He therefore saw no reason to reduce the amount of monthly allowance awarded to the two children. In this view the only order that he passed was with regard to the issue of warrant against the husband, on his failure to pay up the arrears within 15 days from the date of the order. Against that order the husband has come in revision.

4. As observed earlier three points have been raised for the petitioner-husband and they are:

(1) The order fixing the monthly allowance to the wife at Rs. 75/- should have been cancelled by the learned Magistrate with effect from the date on which the period of 'Iddat' expired i. e. with effect from July 10. 1970.

(2) The order of monthly allowance should have been altered by reducing the monthly allowance payable in case of children from Rs. 25/- to Rs. 20/-.

(3) The learned Magistrate should have held it proved that the arrears of Rs. 1500/- were paid up by the husband. It is the first point that the question of law showing divergence of opinion between different High Courts arises. The Question is whether on the ground of divorce an application for cancellation of the order of monthly allowance is maintainable under Sub-section (1) of Section 489 of the Code, Before going to that question we may dispose of the two other contentions relating to the merits of the case. For this purpose the finding of the learned Magistrate that the husband gave divorce to the wife on April 10, 1970, will have to be confirmed. That finding being a finding of fact based on appreciation of evidence was not shown on behalf of the wife to have been vitiated by any error on the part of the learned Magistrate. Therefore we have to hold for the purpose of second contention that the husband had divorced his wife on April 10, 1970. It was not in dispute, if the factum of divorce was held proved, that the period of 'Iddat' would expire on July 10, 1970. Now, so far as the alteration of the monthly allowance is concerned the only prayer made by the husband is about the alteration in the monthly allowance fixed for the two children. So far as the wife was concerned the husband prayed for cancellation and not alteration. The alteration prayed for in case of the two children was reduction of the allowance from Rs. 25/- to Rs. 20/- each. The evidence of the husband clearly shows that he gets Rs. 108/- per month as salary after payment of the rent of the house. Besides, he also stated before the trial court that he was doing work as night watchman. Therefore he must be earning something from this work. What this amount was is not to be found from the order of the learned Magistrate. Possibly the husband never made this point clear. In this state of affairs there is no reason why the order for monthly allowance in favour of the two children should be varied. It was urged on behalf of the petitioner that after the original order passed in this case the husband has married again and has a daughter by the second wife, whom he has to maintain; but then the maintenance allowance in case of the two children is Rs. 25/- per month only. As against the increased liability on account of the birth of a daughter to the second wife we have also to consider the fact that after the period of 'Iddat' is over in this case, the husband will not be liable to Pay further maintenance to the wife. That maintenance was fixed at Rs. 75/- per month and that would operate as a saving to-the husband. In this state of affairs there is no reason to reduce the monthly allowance in case of the two children. The view taken by the learned Magistrate on. facts of this case is quite correct.

5. So far as the third contention is concerned the learned Magistrate has considered the husband's evidence and found the story about payment of Rupees 1500/- unbelievable. He held the whole story unnatural. The story of the husband was that after the wife went to stay with the husband the amount was paid to her. In the opinion of the learned Magistrate there would have been no necessity of paving this sum when the wife had gone to stay with the husband. He found some difference in the date of the purchase of the stamp paper of a writing which was relied upon in support of this contention and the date of writing itself, He also found that the writer of that document was not examined. Having considered these features the learned Magistrate disbelieved the husband's evidence. He has appreciated the evidence correctly and has arrived at a finding of fact which cannot now be disturbed in this revisional application. Therefore the second and the third contentions raised on behalf of the petitioner will fail.

6. Now in this case so far as the enforcement of the order of monthly allowance by the wife is concerned, we are at a state at which the enforcement of that order for arrears accruing due up to January 30, 1970 only is concerned. That is the application for enforcement in respect of arrears of maintenance to the wife and the two children before the divorce by the husband. In spite of this limited scope of the inquiry the husband invited the learned Magistrate to cancel the order of monthly allowance with effect from the date of the expiry of the 'Iddat' period by an application under Section 489 of the Code and that is how the question of law as aforesaid arises with regard to that application. Before deciding that question it would be worthwhile to reproduce the relevant provisions of the Code bearing upon the subject. They are:

488. (1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub Divisional Magistrate or a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, at such monthly rate, not exceeding five hundred rupees in the whole, as such Magistrate thinks fit. and to pay the same to such person as the Magistrate from time to time directs.

(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made.

(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

489. (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.

490. A copy of the order of a maintenance shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to whom the allowance is to be paid, and such order may be enforced by any Magistrate in any place where the person against whom it is made may be. on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance due.

7. It appears that there is no difference of opinion between the different High Courts, decisions of which have been cited at the Bar on the point that the husband when confronted with the wife's application to enforce the order of monthly allowance under Section 488 (3) can set up divorce as sufficient cause for not complying with the order. On that point all the High Courts except Knox J. of Allahabad High Court in a dissenting judgment in Shah Abu Ilyas v. Ulfat Bibi (1897) ILR 19 All 50 (FB) agree. However, there is a difference of opinion on the question whether a husband can get the order of maintenance cancelled by giving an application under Sub-section (1) of Section 489 of the Code and that difference arises because of the language employed by that sub-section which speaks in the first instance of alteration in the monthly allowance as the Magistrate thinks fit. This alteration has to be made on proof of change in the circumstances of any person receiving the monthly allowance under Section 488 or ordered to pay the same to his wife. That means change in circumstances in case of both the wife and the husband can be taken into consideration. But the difference arose between the High Courts in interpreting the words 'change in the circumstances'. According to one view this phrase means change in financial circumstances of the parties and not change in the status of the parties. This view is represented by the observations of Mahmood J. in the matter of the petition of Din Muhammad ((1883) ILR 5 All 226) and the decision of the Full Bench in (1897) ILR 19 All 50 (supra). On the other hand a Single Judge of the Madras High Court in Re Mohamed Rahimtullah AIR 1947 Mad 461 took the opposite view. Similar view was taken by the Judicial Commissioner's Court of Nagpur in Emperor v. Shaikh Daud AIR 1921 Nag 7 and by the Andhra Pradesh High Court in Janni Bibi v. Mohammed Abdul Rahman : AIR1955AP1 . The Kerala High Court following the Madras and Andhra Pradesh cases mentioned above took the same view in Mohammed Ismail v. Sarammal : AIR1960Ker262 . These latter decisions base themselves on the view that the payment of monthly allowance to the wife is dependent upon the subsistence of relationship of husband and wife between the parties and therefore when that relationship ceases to exist as in case of divorce, an order of monthly allowance loses its effect. So far as this proposition is concerned there can be no dispute. But the further proposition that was evolved by the aforesaid High Courts was that the words used in Sub-section (1) of Section 489 of the Code should be so interpreted as to authorise the Magistrate to cancel an order of monthly allowance on account of the divorce between the husband and the wife. For this purpose the word 'alteration' in Sub-section (1) of Section 489 was interpreted as authorising the Magistrate to alter the amount to nothing. This in effect would be cancellation of the order.

8. Now so far as this Court is concerned the matter is concluded by a decision of the Division Bench of the' Bombay High Court reported as In re Punjalal Chunilal 30 Bom LR 617 : AIR 1928 Bom 224. The facts of that case may be noticed briefly. On July 9, 1826. the wife obtained an order of monthly allowance of Rs. 15/- against the husband. Then the husband applied to the Magistrate for reduction in the rate of maintenance but he did not allege any change in his circumstances. Evidently this application was under Section 489 (1) of the Code. Pending the hearing of this application the husband applied on August 23. 1927. in the same proceedings that he had divorced his wife and therefore she had no further claim on him. The wife put in a counter-affidavit on August 30, stating that divorce was not permissible in her caste and that she was not willing to be divorced. The learned Magistrate dismissed the husband's application for reduction in the rate of maintenance, holding that no change of circumstances had been proved so as to justify any reduction, but he held that the husband was only liable to pay the maintenance UP to the date of his application of August 23, 1967, alleging a divorce. This means that the learned Magistrate accepted the bare allegation of the husband about the divorce and passed an order which would have deprived the wife of the monthly allowance after August 23. 1967. The matter was referred to the High Court. In making the reference the learned Sessions Judge was of the view that the Magistrate should have required the husband to prove that there was a legal divorce and if this was not proved the maintenance should have been continued. This view of the learned Sessions, Judge presupposes that the Magistrate had undoubtedly the jurisdiction to pass the appropriate order under Section 489 (1) of the Code when the husband came to the Court under that provision saving that he had divorced his wife and therefore the wife was no longer entitled to the monthly allowance ordered earlier. While dealing with this point the Court disposed of the question on the interpretation of Section 489 of the Code only. This is clear from the following observations:

The Sessions Judge is of opinion that the Magistrate was not justified in accepting the mere statement of Punialal 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 Punialal 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 cases 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 (18971 ILR 19 All 50 FB which rules that this section does not refer to a change in the status of parties entitling a stoppage of the allowance; and also In re Abdul Ali Ishmailji (1883) ILR 7 Bom 180. and Mahomed Abid Ali v. Ludden Sahiba (1886) ILR 14 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.

9. The view of the Full Bench of Allahabad High Court in (1897) ILR 19 All 50 (FB) (supra) as regards the meaning to be given to the phrase 'change in the circumstances' was adopted by the Bombay High Court. This being a decision of the Division Bench is binding upon me. However, I have considered the question of referring the matter to a larger Bench in view of the opposite view taken by the other High Courts mentioned above. Even the Division Bench in Punjalal's' case (supra) says that the question of divorce can certainly 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 of the Code. The learned Judges say that 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'. Therefore the right of the husband to set up divorce as a sufficient ground for not complying with the monthly allowance has been recognissed in Bombay also. Having considered the language of the relevant provisions of the Code, reproduced earlier. I feel that the view taken by the Bombay High Court represents the correct interpretation of those provisions. In my view the Legislature in Chapter XXXVI of the Code in which the aforesaid provisions occur has not left it open to a Magistrate to cancel the order of monthly allowance on the ground of divorce under Sub-section (1) of Section 489 of the Code. The language of the different provisions bearing upon the question of cancellation and alteration to be presently noticed would, speaking with respect, fully Justify the view taken by the Bombay High Court, Before that it may be stated that the husband against whom an order of monthly allowance has been made under Section 488 of the Code and who has divorced his wife thereafter, has two remedies open to him on a correct interpretation of this provision. He can either set up divorce as a sufficient cause when the order of monthly allowance is sought to be enforced against him in respect of the allowance falling due subsequent to the date of divorce. This he can do by way of leading sufficient evidence under Sub-section (3) of Section 488. The other alternative is to approach a Civil Court for a declaration that in view of the divorce the wife is not entitled to monthly allowance claimed from him with effect from the date of divorce. If he succeeds in obtaining such a declaration he can apply under Sub-section (2) of Section 489 requesting the Magistrate to cancel the order of monthly allowance. The Legislature having provided for the summary remedy with regard to payment of monthly allowance to wives and children also provided for cancellation of the order of monthly allowance as well as alteration thereof. It appears therefore that so far as the Magistrate passing the order and acting under Chapter XXXVI of the Code is concerned the provisions are exhaustive with regard to his powers. Now if we turn to Sub-section (4) of Section 488 it declares that the wife shall not be entitled to receive any allowance from her husband in three contingencies contemplated by that sub-section namely (i) if she is living in adultery (ii) if without sufficient reason she refuses to live with her husband, and (iii) if the husband and wife are living separately by mutual consent. Having declared that the wife will not be entitled to receive monthly allowance in these circumstances, the Legislature did not rest content with this declaration. By Sub-section (5) it conferred in specific terms power on the Magistrate to cancel an order of monthly allowance on the same three grounds contemplated by Sub-section (4). This shows that whenever the question of cancellation' of the order of monthly allowance arose the Legislature conferred the power to cancel the order in specific terms, after declaring in what circumstances the wife ceases to be entitled to receive monthly allowance. Then by an amendment in the year 1923 the Legislature also conferred power on the Magistrate to cancel the order of maintenance on account of any decision of a competent Civil Court. This power was also in terms conferred by the amendment of Section 489 of the Code in the year 1923. Sub-section (2) of Section 489 was added in that year. It appears there-fore that the power to cancel the order was limited to the contingencies contemplated in Sub-section (5) of Section 488 or Sub-section (2) of Section 489. Evidently Section 369 of the Code would apply to, an order of monthly allowance passed under Section 488 as well. Under Section 369 no Court when it has signed its judgment shall alter or review the same, except to correct a clerical error. In view of this provision the power to cancel an order had to be conferred in express terms and when conferring it the Legislature confined the power only to specified contingencies as shown above. In view of this it is not permissible for a Court of law to act contrary to the contingencies specified by the Legislature, If I might say so, with great respect to the learned Judges, the other view gives an unwarranted interpretation to the word 'alteration' occurring in Section 489 (1) of the Code. Such an interpretation is not justified in view of the context in which the word 'alteration' occurs in Sub-section (1). The alteration has reference to the allowance to be given to the wife or the child. Having conferred the power to alter an allowance either in favour of the wife or the child or against them the Legislature further says by way of proviso to Section 489 (1) that if this alteration was by way of increase the upper limit of Rupees 500/- should not be exceeded. This context in which the word 'alteration' occurs in Sub-section (1) of Section 489 Coupled with the fact that Legislature has taken; care to provide for specified contingencies in which an order of monthly allowance can be cancelled, can lead to only One interpretation of the word 'alteration' occurring in Sub-section (1), It would mean the increase or decrease in the monthly allowance fixed. It would not mean, speaking again with respect, altering or reducing the amount to nil. That in my opinion is straining the language of Sub-section (1). There is no reason why we should do this when sufficient safeguard is provided to the husband who has obtained divorce from his wife by Sub-section (3) of Section 488 under which he can plead the divorce by way of sufficient cause as well as by Sub-section (2) of Section 489 of the Code, These remedies having been provided in terms there is no reason why we should give to the word 'alteration' occurring in Sub-section (1) of Section 489 any extended meaning so as to legislate over the subject. It was only on this ground that I was not inclined to refer the matter to a larger Bench and find myself in full agreement with the view taken by the Bombay High Court in Punialal's case. In the present case the stage for enforcement of the : order of monthly allowance falling due after the expiry of the period of 'Iddat' has not arisen because there is no application by the wife claiming monthly allowance after that date. Therefore the husband's anticipatory application for cancellation of the order cannot be entertained in the view I have taken of the provisions of Sub-section (1) of Section 489 of the Code. Such an application was not competent and the same was rightly dismissed.

10. In the result the application fails and is dismissed. Rule discharged.


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