Decided on October 28,1954

JANNI BIBI Appellant


- (1.) This is a revision against the order of the Court of the District Magistrate, West Godavari, setting aside the order awarding maintenance to the petitioner under S. 488, Criminal P. C. ( The petitioner and the respondent are Muhammadans. She married the respondent some years ago, and had three children by him. She filed M. C. No. 5 of 1950 on the file of the Sub-Divisional Magistrates Court, Eluru, under S. 488. Criminal P. C., and obtained an order for maintenance at the rate of Rs. 30.00 per month. Subsequently, in M. C. No. 2 of 1952, the Honorary Additional Ist Class Magistrate enhanced the rate of maintenance from Rs. 30.00 to Rs. 32.00 permonth.The respondent alleging that he divorced the petitioner by uttering Talak thrice before repectable people on or about 27.4.1954, filed M. C. No. 10 of 1954 before the District Magistrate. Eluru, for cancelling the order of maintenance. After infructuous attempts to serve the petitioner, she was declared ex parte. After examining P. W. 1 and the documents filed, the learned District Magistrate declared that the orders made in M. C. No. 5 of 1950 and 2 of 1952 were unenforceable from 27.4.1954 and accordingly set them aside. The wife has filed the aforesaid revision.
(2.) The learned counsel for the petitioner contended that the District Magistrate had no jurisdiction to cancel the order of maintenance on the ground that the wife was divorced. He also argued that the learned Judge violated the principles of natural justice in making an order behind the back of the petitioner. The learned counsel for the respondent countered the argument by contending that the Magistrate had ample power to do so under S. 489, Criminal P. C., and that, under the provisions of that section, the presence of the wife was not required for making any order against her.
(3.) To appreciate the contention of the parties, it may be convenient at this stage of read the relevant provisions of the Criminal Procedure Code: "Sec. 488: (1) If any person having sufficient means neglects or refuses to maintain his wife ................. 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 persons to make a monthly allowance for the maintenance of his wife ..................... of such monthly rate............................... (6) All evidence under this chapter shall be taken in the presence of the husband ..............or when his personal attendance is dispensed with, in the presence of his pleader and shall be recovered in the manner prescribed in the case of summons cases: Provided, that if a Magistrate is satisfied that he is wilfully avoiding service or wilfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown on application made within three months from the date thereof. Sec. 489: (1) On proof of a change in the circumstances of any person receiving under S. 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 one hundred rupees in the whole be not exceeded. Sec. 490: A copy of the order of 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 suc such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance due.";

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