Habibullah vs Hameeda Beevi and Another

K. Sadasivan, J.—The counter-petitioner in a proceeding u/s 488, Criminal P.C. is the revision petitioner. Parties are Muslims. The marriage was divorced on 16-2-1969 by Ext. Dl Talak chit The petition for maintenance was filed on 20-3-1969. Learned District Magistrate has found that the marriage was divorced on 16-2-61 but he has- stated that a Muslim wife is entitled to claim maintenance from her husband during the period of ''iddat'' and for that a petition can well be maintained. He has therefore, awarded mainten ance from 20-3-1969 till 15-5-1969 i. e., the period of ''iddat''. The learned magistrate is in error in having held that the petition is maintainable. u/s 488 Criminal P.C. a petition can be maintained only by the wife or children- A divorced wife, therefore, is not competent to file a petition for maintenance under the Criminal P.C. Maintenance for the period of ''iddat'' can, however, be enforced in a Civil Court. this Court has held so in Areekkal Abdurahiman Musaliyar Vs. Neliyaparambath Ayissu, . The learned Judge has observed:�

If on the date on which the application u/s 488 is made the relationship of husband and wife exists the Magistrate will have jurisdiction to pass an order. The proper date to be considered is the date on which the application is made. If the fact of divorce comes to the knowledge of the wife only after filing of the petition, she may be entitled to file a petition. As the wife- has clearly, admitted that she knew about the divorce before the date of the petition, the application was not competent at the time it was made. She may be entitled to claim maintenance for the period of Iddat in a civil Court.

In the present case, even though the divorce was denied by the wife, it has well been proved by her own father, P.W.''2 supported by Ext. Dl. The petition is, therefore, not maintainable so far as the wife is concerned.

Regarding the maintenance awarded to the child, learned Counsel would contend that the quantum namely, Rs. 15/- per mensem awarded, is too much when his monthly income is only Rs. 60/- as found by the court. But with this slender income he was maintaining both wife and child till the date of wife''s divorce and now that the wife has disappeared from the picture, it is not fair on his part to contend that Rs. 15/-per mensem is exhorbitant and that it is beyond his means. The result is that the maintenance awarded to the wife is set aside and that awarded to the child is confirmed. The Revision Petition is allowed to the extent indicated above, and dismissed in other respects.