Md. Reyazuddin Khan vs Shama Ashrafi and Another

G.S. Chaube, J.—This application under Sections 397 and 401 of the Code of Criminal Procedure (hereinafter to be referred to as ''the Code'') is directed against order dated 4-9-1998 of Sri A.K. Verma, Judicial Magistrate, First Class, Dhanbad, in M.P. Case No. 140/92 dismissing an application of the petitioner presented before the magistrate u/s 127(3) of the Code.

The above mentioned proceeding u/s 125 of the Code had been commenced by the present opposite parties who are the wife and a minor son of the petitioner. By filing this application u/s 125 of the Code, they had sought maintenance from the petitioner on the ground that even though the petitioner had means to maintain them and they themselves were resourceless, he was neglecting to maintain them. The application was registered as M.P. Case No. 140/92. Though the petitioner appeared in the Court below, he failed to file any showcause or adduce evidence in rebuttal of the claim of the opposite parties. Consequently, the judicial magistrate before whom the application was made, directed the petitioner by his order dated 23-4-1993 to pay the opposite party No. 1 a sum of Rs. 300/- (three hundred) per month and to opposite party No. 2, Rs. 200/- (rupees two hundred) per month by way of maintenance from the date of the filing of the application on 16-9-1992. Against that order the petitioner approached the sessions Court invoking revisional jurisdiction. His revision application was registered as Cr. Revision No. 132 of 1993. After hearing the parties the learned Vlth. Addl. Sessions Judge, Dhanbad dismissed the revision application by his order dated 5-2-1998. It was thereafter that the present petitioner purported to approach the judicial magistrate for cancellation of his order dated 23-4-1993 in accordance with the provision of Clause (c) of Section 127(3) of the Code. That application was filed by petitioner on 16-4-1998. The opposite parties who were the applicants in the Court below, also approached the judicial magistrate for issuing process in accordance with the provision of Section 125(3) of the Code for realisation of the arrears of maintenance payable to them on the ground that nothing had been paid by the present petitioner. In his application u/s 127(3)(c) of the Code the petitioner took a stand that on 2-3-1994 itself with the intervention of the wellwishers of the parties there was a compromise between the parties and in terms of such compromise, he had returned the entire gifts and properties received at the time of the marriage, to the wife (opposite party No. 1) and had also paid a sum of Rs. 3410/- in lieu of ornaments, besides Rs. 6000/- (rupees six thousand) as consideration for ''khula'' (divorce obtained by wife). However, in their rejoinder, the opposite parties denied the allegation and stated that the story of such compromise is incorrect. On hearing both the parties the learned judicial magistrate rejected the application of the petitioner filed on 16-4-1998 by making the impugned order on the ground that even a divorced wife is entitled to receive maintenance from husband under the Muslim Personal Law; that order has been challenged in this application.

Mr. Satendra Singh, learned counsel appearing for the petitioner submitted that the judicial magistrate committed an error in rejecting the application of the petitioner without making any inquiry in respect of what the petitioner had alleged in the application about the compromise, albeit denied by the opposite parties. His contention is that in view of the provision of Clause (c) of Section 127(3) of the Code, it was incumbent on the part of the judicial magistrate to allow the petitioner to prove his contention by adducing evidence and only if the learned magistrate found what the petitioner had stated is not correct that application was liable to be dismissed. Therefore, his submission is that the matter need be remitted to the judicial magistrate concerned for making appropriate order after giving the parties an opportunity of adducing evidence in support and rebuttal of the allegation of the petitioner.

Mr. S.P. Sinha, learned counsel appearing on behalf of the opposite parties has no serious objection to this submission of the learned counsel for the petitioner. However, he submits that even though the petitioner was directed by the judicial magistrate under order dated 23-4-1993 to make payment by way of maintenance, the opposite parties have not received a single farthing as yet. Therefore, he has submitted that if the application of the petitioner presented u/s 127 of the Code is remitted for a fresh order, the opposite parties must be ensured of receiving arrears of maintenance which has not been paid as yet.

Clause (c) of Sub-section (3) of Section 127 of the Code provides that where any order has been made u/s 125 in favour of a woman, the magistrate shall, if he is satisfied, inter alia, that the woman has obtained a divorce from her husband and that she has voluntarily surrendered her right to maintenance after her divorce, cancel the order from the date thereof. The contention of the petitioner is that in terms of the compromise dated 2-3-1994 opposite party No. 1 had surrendered her right to maintenance after obtaining divorce (''khula''). Therefore, the order dated 23-4-1993 granting maintenance to her need be cancelled. However, since the wife (opp. party 2) has denied the allegation, an inquiry was imperative and only after such inquiry appropriate order could have been passed. There appears force in the contention, but to the extent the order sought to be cancelled concern the wife only. In law, the liability of the father to maintain the minor child living with the estranged mother cannot be disputed. Therefore, even in terms of the alleged agreement dated 2-3-1994. the order of the judicial magistrate confirmed by the sessions Court directing the petitioner to pay maintenance to opp. party No. 2 at the rate of Rs. 200/- per month can hardly be cancelled unless the child attains majority or starts living with the father.

For the reasons stated above, this application is allowed in part to the extent it concerns the wife (opposite party No. 1) only, and the matter is remitted to the judicial magistrate concerned for a fresh order in accordance with law with particular reference to the provisions of Section 127(3) of the Code after allowing the parties to adduce evidence in support and rebuttal of the story of the wife, opposite party No. 1 obtaining ''khula'' and surrendering her right to receive maintenance as alleged by the petitioner subject, however, to the condition that the petitioner shall pay in the Court below within three months from this date to the wife (opp. party No. 1) arrears of maintenance payable to her upto the alleged date of ''khula''/agreement dated 2-3-1994, and the entire arrears of maintenance payable to opposite party No. 2 till the date and shall continue to pay such maintenance to him every month until the disposal of the application aforesaid. Payment of arrears of maintenance to the opposite parties as indicated above, shall be a condition precedent. If the petitioner fails to pay the entire arrears of maintenance