1. In defence to an application for the enforcement of an order of maintenance against him in respect of his wife and his three daughters, the petitioner pleaded that the eldest of the three daughters had been married and he objected to paying any maintenance for her subsequent to the date of her marriage. The learned Magistrate held that the petitioner's only remedy was to file an application under Section 489 of the Criminal Procedure Code and to get the order varied in his favour. As he had failed to do so, the learned Magistrate declined to consider the question and ordered maintenance to be paid in accordance with the terms of the pre-existing order.
2. It was decided by a Full Bench of the Allahabad High Court in Shah Abu Ilyas v. Ulfat Bibi I.L.R.(1806) All. 50 that the '' change in circumstances ' referred to in Section 489 of the Code is a change in the pecuniary or other circumstances of the party paying or receiving the allowance which would justify an increase or decrease of the amount of the monthly payment originally fixed and not a change in the status of the parties which would entail a stoppage of the allowance. In that particular case the husband against whom enforcement of an order was sought had set up the divorce of his wife as a defence. The same view was expressed by a single judge of this Court in the case of Mohamed Anser Sahib v. Zubeda Bee (1933) M.W.N. 121 in which it was held that divorce was not a change in circumstances but a change in status. It follows, therefore, that the view of the learned Magistrate that the petitioner's only remedy was by way of an application under Section 489 of the Criminal Procedure Code is erroneous. It was open to the petitioner to set up the marriage of his daughter as a sufficient cause within the meaning of Section 488 (3) for failure to comply with the order in so far as she was concerned.
3. In the result, the petition is allowed and the order is set aside and the petition remanded to the lower Court for further disposal after considering the plea of marriage set up by the petitioner.