The questions referred to this Court are as follows:—
In our opinion a Magistrate is competent to stay the operation of an order for maintenance of a wife made under section 234, Act IV of 1877, and to refuse to issue his warrant under the 3rd clause of that section, although he cannot formally cancel the order, which must be taken to have been a legal and proper order when it was made, and he is competent to try all questions raised before him which affect the right of a woman to receive maintenance. This is the view taken by the Bombay High Court in the case cited in the reference (In re Kasam Pirbhai and his wife Hirbhai, 8 Bom. H.C.R, C.C, 95). The Court, in the exercise of its criminal jurisdiction, enquired into the fact and legality of the divorce there alleged, and having found that there had been a legal divorce, it declared that the Magistrate ought not to issue an attachment upon, or otherwise to execute the order, he being in fact functus officio.
The power of the Magistrate to act in this way does not, in our opinion, arise from the change in the provisions of section 13, Act IV (B.C) of 1866, introduced by section 235, Act IV of 1877, and does not depend upon the expression “may make such alteration in the allowance ordered as he thinks fit.” These words, read with the proviso which immediately follows them, “provided the monthly rate of Rs. 50 be not exceeded,” and with the provisions of the earlier law, which only admitted of reduction of the amount ordered, and gave no authority to a Magistrate to increase such amount on proof of a favourable change of the circumstances of the person ordered to pay, seem to us to be intended only to vest in a Magistrate a power to revise any order of maintenance previously made on proof of change of circumstances, with a view to alter the amount to that which may be appropriate under the new circumstances.
It is not, we think, doubted by the learned Magistrates who have made this reference, that an order of dissolution of marriage under the Indian Divorce Act would put an end to the operation of a Magistrate's order for maintenance, but they seem to draw a distinction between the case of persons subject to the Divorce Act, and Mahomedans, who can exercise the power of divorce at their own pleasure and without the intervention of any Court. This distinction cannot, in our opinion, be maintained. Whether the dissolution of the bond of marriage is capable of being effected in one way or in another, when once validly effected, it must operate to stop the operation of a Magistrate's order made in favor of a wife. With the cessation of the conjugal relation the responsibilities attaching thereto cease. It is only on proof of the existence of this relation (we have not now to deal with the case of children) that a Magistrate can make any order at all, and any order made is to be for a monthly allowance for the maintenance of a wife, and it is as wife that the woman is to continue to receive an allowance. The last clause of section 234, which is so worded as to apply either before or after an order for maintenance is made, shows that conduct inconsistent with her duties as wife will take away her right to receive it, even while the conjugal relation remains undissolved.
If a woman makes an application to a Magistrate for an order for maintenance against her husband, she must, if the relation of husband and wife is disputed, prove its existence. It may, perhaps, be admitted that there had been a marriage, but alleged that it has been dissolved. A Magistrate must of necessity enquire into the fact of marriage in the one case, and into the fact of dissolution of marriage in the other, and we find that in one of the cases referred, the learned Magistrate did try the plea of divorce. Unless the woman making the application is a wife he has no power to make an order of maintenance. In the case of alleged divorce the divorce must be proved, whether the parties, are Christians or Mahomedans. The means of proof are different, but the mode of procedure, as far as the Magistrate is concerned, is the same. He is to determine on evidence whether the allegation of divorce is true. In the one case the only possible mode of divorce is by a decree of a competent Court, and the decree is conclusive as evidence. In the other a recourse a to Court is wholly unnecessary, and unless it should happen that the question has been already decided between the parties in a competent Court, the Magistrate must draw his own conclusions the oral and other evidence put before him as best he may. The fact that the power of divorce given by the Mahomedan may be so exercised as to defeat the intention of the legislature as expressed in section 234, Act IV, 1877, and other similar enactments, may go to show that further legislation is required, but it cannot affect the law as it stands. It has been said by learned pleader (who appeared before us on behalf of the petitioner to the Magistrates) that the right to exact payment of dower immediately on dissolution of marriage is a sufficient check to the abuse of that power; this, however, is not matter for pre-consideration.
In our opinion it is, under the terms of section 234, as essential to order the continued operation as to the original making of an order of maintenance that the recipient of the allowance should be a wife at the time for which maintenance is claimed, and consequently for the purposes of Chapter XVIII of the Presidency Magistrates Act of 1877, a Magistrate must, when a question of divorce arises, determine on such evidence as may be before him, her there has or has not been a legally valid divorce. If he finds that there has been a valid dissolution of the marriage tie, he should refrain from taking any steps to enforce the order of maintenance from the date of such dissolution.