1. The wife petitioner impugns before me an order passed by Shri B.N Biswas, Sub-Divisional Judicial Magistrate, Jangipur in execution case No. 5 of 1987 arising out of a proceeding under s. 125-128 of the Code of Criminal Procedure.
2. The petitioner initially filed a proceeding for maintenance of herself and of her minor daughter against the husband opposite party no. 1 before the learned Sub divisional Judicial Magistrate, Jangipur in Case No. M.R 58 of ??? under s. 125 Cr. P.C The learned Magistrate granted maintenance to the wife at the rate of Rs. 80 per month for herself and at the rate of Rs. 60 per month for her minor daughter. The husband opposite party no. 1 moved against this order before this Hon'ble Court in Crl. Rev no. 1760 of 984. The wife also moved in revision against inadequacy of the quantum of maintenance in this Court in Crl. Rev no. 1555 of 1984. Both these cases were disposed of by S. Ahmed, J. on 10.2.86 whereby his lordship dismissed the revisional application as filed by the husband opposite party no. 1 and allowed the revisional application as filed by the wife petitioner and increased the quantum of maintenance to As 300/- per month for the wife and Rs. 150/- per month for the minor daughter. As regards arrears of maintenance the husband was directed to liquidate the same by way of instalments at the rate Rs. 150/- per month which was directed to be paid along with the current maintenance and if any amount had already been paid, the same was directed to be adjusted against arrears amount. The husband became wiser on coming into operation of the Muslim Women (Protection of Rights on Divorce) Act, 1986. He filed a petition under s. 127 of the Code of Criminal Procedure read with ss. 3 and 7 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 contending inter alia that he has divorced his wife and was not bound to give maintenance any more to her. When the wife petitioner filed a proceeding under s. 128 of the Code of Criminal Procedure for realisation of the arrears due to her, her claim was countered by the husband opposite party no. 1 with a prayer for stay of the said proceeding and by an order dated 9.4.87 the learned Subdivisional Judicial Magistrate, Jangipur allowed the said prayer till final disposal of Misc Case no. 61 of 1987 which was filed by the husband petitioner under s. 127 of the Code of Criminal Procedure read with ss. 3 and 7 of the Muslim Women (Protection of Rights on Divorce) Act, 1986 for setting aside or altering the previous order for maintenance as passed against the husband petitioner.
3. I have given my anxious consideration to facts and circumstances of the case and I am of the firm view that the maintenance of the minor daughter cannot in any manner be stifled with the filing of the application under s. 127 of the Code of Criminal Procedure read with ss. 3 and 7 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. As regards the wife who is claimed to have been divorced subsequetly by the husband, the factum of such divorce has to be proved by cogent evidence in a proceeding under s. 127 of the Code of Criminal Procedure and till such time the said application under s. 127 of the Code of Criminal Procedure stands allowed, the present proceeding under s. 128 Cr. P.C for execution and enforcement of the maintenance should not in any manner be stopped, keeping in view the fact that the claim for maintenance should in no manner be stifled unless and until the order of maintenance as initially passed in favour of the wife and the minor daughter and as upheld by the High Court with the increase of quantum, is not altered by the learned Magistrate on proof of the subsequent events or the supervening circumstances.
4. In ultimate analysis I set aside the order dated 9.4.87 and direct the learned Magistrate to expeditiously dispose of the proceeding under s. 127 of the Code of Criminal Procedure. The enforcement of the maintenance is not stayed but if any alteration is actually made under s. 127 Cr. P.C any amount paid in excess may stand adjusted in so far as maintenance of the wife is concerned but ??? will have no effect whatsoever so far as maintenance of the minor daughter.
5. Welfare laws are to be read as to be effective delivery systems of the salutary objects sought to be served by the Legislature and when the beneficiaries are the weaker sections like destitute women, spirit of Article 15(3) of the Constitution must belight the meaning of the section. Article 15(3) it to be read in the context of provisions for maintenance to the wife and child and the benefit of doubt if any in statutory interptration should always go to neglected wife and child. If an application under s. 127 of the Code of Criminal Procedure is filed, it does not have immediate effect in stifling the original order for maintenance as made under s. 125 of the Code of Criminal Procedure and hence as I have indicated above, the order for original maintenance as granted to the wife should in no manner be stopped Regard being had also to the fact that the maintenance for the minor child should in no manner be evaded by the father of the child, if any amount is actually found to have been paid to the wife by way of maintenance beyond the period of Iddat (for which period the husband is bound to maintain the wife) the same may be ultimately adjusted against her maintenance, if so desired by the learned Magistrate in the final order that is to be passed by him under s. 127 Cr. P.C
6. I pass this order keeping in view the balance of convenience and inconvenience between the parties and also the fact that the factum of divorce, if any, has to be proved by cogent evidence by the husband in the court of law if he seeks any alteration under s. 127 Cr. P.C I pass this order also keeping in view the fact that the husband has already deposited the maintenance for January and February 1987 which the wife was legally entitled to withdraw.
7. The revisional application is thus disposed of Let a copy of this order be sent down to the court below immediately.
Impunged order set aside. Direction given.