Gulsher Ali vs Smt. Mumtaz Fatma

M. Wahajuddin, J.—This is an application by the husband. Opposite party is his wife and was allowed a maintenance of Rs. 300/- per month, as per order of the Judicial Magistrate, Moradabad. The revision preferred against that order was also dismissed, but the amount was split up, Rs. 250/- was allowed for the wife and Rs. 50/- per month was allowed for the child.

An application was moved on 23-2-1982 for the recovery of the maintenance allowance. The applicant claimed to have filed an objection dated 7-5-1982 taking one of the ground of objection that the Respondent No. 1 has been working as teacher for last 2-1/2 years run by the District Board, Moradabad, and she has been getting about Rs. 200/- per month, hence the order for maintenance allowance cannot be enforced. It would appear from the order dated 5-1-1983 of the Magistrate, that he ordered that the objection will be considered u/s 127, Code of Criminal Procedure on merits and as the applicant has not fulfilled the conditions imposed by the High Court regarding stay, realization warrant be issued against the applicant. A revision was filed against such order and the revisional court observing that the Magistrate has not specified what amount was due for a period one year prior to the prayer for execution and allowing the revision partly, the revisional court set aside the warrant for attachment of salary and remanded the case with the direction that after specifying the exact amount the Magistrate shall proceed for recovery of the arrears of maintenance for a period of one year and shall at the same time further proceed to dispose of the application u/s 127, Code of Criminal Procedure.

It is urged by the learned Counsel that his application is not u/s 127, Code of Criminal Procedure, but it is an appilcation u/s 125(5), Code of Criminal Procedure and the Magistrate before directing any recovery has to decide the objection first. It is, further, urged that actually the applicant has not applied u/s 127, Code of Criminal Procedure, and it is wrong to say that application u/s 127, Code of Criminal Procedure, is to be disposed of. It is also urged that no recovery proceeding can be undertaken. Section 125(5) runs as follows:

125 (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.

Section 127(1) runs as below ;--

127 (1). On proof of a change in the circumstances of any person, receiving u/s 125 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife, child, father or mother, as the case may be, 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 shall not be exceeded.

The rules of interpretation are well settled, namely, that where there are two provisions concerning the same matter a harmonious construction be made to reconcile them.

It is noteworthy that the maintenance decree was upheld and confirmed in the revisional proceedings on 30-6-1981. The decree itself was passed by the Magistrate on 12-7-1980. The application was preferred, which the applicant terms as objection, on 17-5-1982 and it was stated that the wife is employed since 2-1/2 years, meaning thereby that she was in employment when the decree itself was passed. When that is the position and the matter was not agitated in course of the proceedings u/s 125, Code of Criminal Procedure, then it will not be open to urge that plea, except by way of seeking modification and cancellation of the maintenance order, which is possible only u/s 127, Code of Criminal Procedure. It is noteworthy that in paragraph 4 of the application, which the present applicant preferred before the Magistrate (Annexure ''1''), it was stated that the circumstances has been changed, and, as such, u/s 127, Code of Criminal Procedure, the court may cancel the maintenance award given u/s 125, Code of Criminal Procedure. When that was the stand of the applicant himself the court below were fully justified to direct enquiry u/s 127, Code of Criminal Procedure, and the order is in no way erroneous. The applicant should have waited for the decision of that application before rushing to This Court.

Reliance was placed upon the case of Mehrunnisa Vs. Noor Mohammad, on certain paragraphs. I have gone through the ruling. This ruling itself lays down vide head note (D) and the body of the judgment that the cancellation of maintenance order has no retrospective effect and it does not exonerate the husband from breaches committed prior to cancellation and he will be liable to pay the previous arrears. It has been expressly observed that if in proceeding for recovery of arrears husband offers to maintain the wife, provided she lives with him and the order u/s 481(1) old Code of Criminal Procedure, is cancelled, it would not affect the proceedings for enforcement of the order prior to the date of offer. This ruling does not help the applicant at all. He would be liable for the arrears, otherwise recoverable within limitation and recovery can be sought. Reliance was placed upon the pronouncement of some other Court: Kamala Sundari Dassi Vs. Nilmony Das, , but in view of Allahabad view, as laid down, these rulings can be of no avail.

Reliance was also placed upon the case of Shiam Behari v. Smt. Dayawati 1973 A CR 111. This pronouncement is on a different point. Apart from that, it is a single Judge pronouncement while I have referred to Division Bench. I may also mention that the Magistrate has not refused any enquiry concerning the prayer for cancellation of the order and that matter is still pending and it is the applicant who is causing delay by, instead of cooperating in that proceeding, rushing upto This Court u/s 482, Code of Criminal Procedure. It would also appear that the applicant did prefer an application u/s 482, Code of Criminal Procedure, earlier and did not comply with the conditions laid down in the stay order and now by this objection anxiety is to have the recovery stayed. I may also observe that in AIR Manual Commentary IV Edition at page 704 under Note ''Cancellation of Order'' a number of rulings have been cited concerning cancellation and laying down that an order of cancellation does not affect the arrears due upto the date of the order. Some of these rulings are of This Court itself.

In the result, I do not find any force in this application u/s 482, Code of Criminal Procedure, and it is summarily rejected.