Jalal-ud-Din vs Mst. Saida and Another

G.A. Kuchhai, J.—This is a revision petition against an order dated 16-10-84 passed by 'Judicial Magistrate Wailoo (Anantnag) in

proceedings u/s 488, Cr. P.C. and against an order dt. 10-10-85 passed in execution proceedings as also against order dt. 7-8-85 passed by

Sessions Judge. Anantnag in revision against the above mentioned order,

The brief facts which gave rise to this petition are : that the respondent filed an application u/s 488, Cr. P.C. for maintenance @Rs. 400/- per

month for herself and for minor son against the petitioner herein. It appears that court below summoned the petitioner/respondent. The respondent

filed his objections, denying the allegation that he refused to maintain the petitioner-wife and the minor son out of wedlock of the parties. The

parties were put to evidence. It appears that during the pendency of the proceedings, the petitioner herein produced a divorce deed before the

court below showing that he has divorced the respondent by virtue of divorce deed dt. 12-8-83. However after hearing counsel for the parties, the

learned trial Magistrate awarded maintenance @Rs. 200/-and Rs. 100/- per month in favour of the respondent-wife and the minor son

respectively. The maintenance was awarded from the date of application to the claimants and in favour of respondent-wife. It is against this order

that the petitioner-husband has come in revision before this Court after his revision was dismissed by the Sessions Judge, Anantnag vide his order

dt. 7-8r85 referred to above.

The respondent was summoned but despite being served she did not choose to appear nor anybody appeared on her behalf, therefore, learned

Counsel for the petitioner before this Court was heard on merits.

The learned Counsel for the petitioner argued that the petitioner has divorced respondent w.e.f. 12-8-83 as a result of which the Respondent

was not entitled to any maintenance from the date of divorce say maintenance for the period of Iddat as ordered by the trial'court, therefore, the

order passed by the trial Magistrate is against law. Mr. Bhat, further argued that learned Magistrate has added interest on arrears of maintenance in

execution proceedings vide order under revision. He further argued that the amount of maintenance @ Rs. 200/- to the respondent against the

petitioner is excessive for the fact that the petitioner is a constable drawing his salary to the extent of Rs. 500/- per month and it may not be

possible for him to pay Rs. 200/- per month plus Rs. 100/- per month for the minor son (total Rs. 300/- per month) out of the total salary of Rs.

500/- per month. Therefore, the amount of maintenance awarded to the respondent is excessive. He, however did not challenge the order

regarding the maintenance of minor son. Now the point to be adjudicated in the first instance is, whether the respondent is entitled to maintenance

during Iddat period in proceedings u/s 488, Cr. P.C. as ordered by the trial Magistrate and challenged before the court. To adjudicate on the point

the provisions of Section 488, Cr. P.C. are to be appreciated which are clear. The first ingredient of the above provision is : (i) that there must be

relationship of husband and wife between the parties (ii) secondly that the wife should not be in a position to maintain herself : (iii) thirdly, the

husband should have neglected to maintain her despite sufficient source: and (iv) fourthly, the amount awarded shall not exceed Rs. 500/- per

month.

In this case, it is admitted fact that the relationship between the parties was, as husband and wife till the divorce came in. From the appreciation

of the evidence, it appears that Respondent was not in a position to maintain herself or her minor son. Further it has also come in evidence that the

petitioner neglected to maintain his wife and son on the grounds that, the respondent's brother deserted his wife related as sister to the petitioner.

Further it is also admitted that the petitioner has remarried. All these facts have abundantly been proved and properly appreciated by the trial

Magistrate which fact need not be reopened now. But the question to be determined is, whether for the period of Iddat after divorce on 12-8-82

the respondent could have been awarded maintenance in proceedings u/s 488, Cr. P.C. This portion of the order passed by the learned trial

Magistrate allowing maintenance for Iddat period in proceedings u/s 488, Cr. P.C. is not only erroneous but illegal. The main ingredient of Section

488, Cr. P.C. for allowing maintenance is continuance of relationship of husband and wife. Once the relationship of husband and wife comes to an

end, prayer for maintenance u/s 488, Cr. P.C. ceases and is not maintainable. This does not mean that the wife-respondent in this case is not

entitled to maintenance as provided under her personal law, i.e., Mohammadan Law, which specifically provides maintenance for period of Iddat

to a Muslim divorced wife as is, the case in hand. All that what is observed, the respondent was not entitled to maintenance from the date of

divorce for a period of Iddat in proceedings u/s 488, Cr. P.C. if the personal law is brought in, the spirit of provision is defeated which is

irrespective of faith to which party belonging may claim. The course open in the circumstances for the respondent to claim maintenance for period

of Iddat is to approach the civil court in accordance with the rights she has under her personal law.

For the reasons the order providing maintenance for a period of Iddat in proceedings u/s 488, Cr. P.C., in this case is quashed as against the

provisions of Section 488, Cr. P.C., which demands the subsistence of relationship of husband and wife. I am supported in my view by the

observations of their Lordships in Qadir Vs. Mst. Zoni, .

The second point is with regard to interest @ 13% awarded on the arrears allowed by the Magistrate in execution proceedings appears

apparently without foundation and force of law. The executing court Judicial Magistrate Wailoo may have passed the order allowing interest on

arrears under emotions or to make the recovery effective but no such discretion appears given to the court to award interest in such proceedings

u/s 488, Cr. P.C., which is complete for all purposes including execution.

The only course for executing court is to see compliance in accordance with Section 488(3), Cr. P.C., only. Therefore, allowing the interest @

13% on arrears appears uncalled for and is not in accordance with the provisions of Section 488, Cr. P.C. Moreover, the Executing Court cannot

add or omit any condition of the order except provided u/s 488, Cr. P.C., therefore, the order with regard to allowing interest on the arrears is

also quashed.

Thirdly, as regards the argument that the amount which is excessive should have been ordered from the date of order as provided by Sub-

section (2) of Section 488, Cr. P.C. This argument does not appeal. In the circumstances of the case as it would have amounted to rejection of

application u/s 488, Cr. P.C., for maintenance as divorce deed has visited the respondent during the pendency of petition u/s 488, Cr. P.C.,

therefore, the order does not suffer on the count that the maintenance has been awarded from the date of application which appears sound in face

of the facts. Regarding excessiveness of the amount, this argument was no doubt appealing provided the relationship of the parties would have

subsisted after the culmination of the proceedings u/s 488, Cr. P.C. The petitioner would have been obliged to pay maintenance at the rate allowed

for a long time, but, unfortunately before the proceedings came to an end, the parties ceased relationship of husband and wife and the respondent

under the above observations is not entitled to maintenance from the date of the divorce deed. Therefore, there appears no good ground to reduce

the quantum of maintenance allowed to the respondent and I do not feel there is any other ground to reduce the amount awarded. The argument on

this account fails. The maintenance allowed to the child was not challenged and is allowed to remain intact.

Execution proceedings will continue for the arrears amount, less by amount already deposited before this Court, as per court order dt. 5-11-

85.

With these observations and modifications in the order, the revision petition partly succeeds and is disposed of in terms of above.