Mahamoodul Haq vs Smt. Jamila Begum

M. Wahajuddin, J.—The opposite party was allowed maintenance payable by the applicant. She was divorced. u/s 127(3), Code of Criminal Procedure, as per Clause (b), it is provided that the maintenance order will be cancelled, in case the wife is divorced by her husband and she has received before or after the date of such order the whole of the sum, which under any customary or personal law is payable. The dower was Rs. 1100/- and one Asharfi. Rs. 1100/- was deposited much earlier. The price of the Asharfi was determined under the directions of the revisional court by the Magistrate as Rs. 500/-. The same was remitted per money order by the applicant to the opposite party in October, 1976. The amount was received back with a note by the post office official that she is outstation and is not residing at that address and it is not known when she will return back. The applicant finally deposited that sum on 1-2-1978. The subordinate courts have held that only from that date the maintenance allowance would stand cancelled. The contention of the applicant is that it should stand cancelled from the date the value of Asharfi in terms of money was remitted by the applicant to the opposite party by money-order.

I have examined the language of Section 127(3)(b) Code of Criminal Procedure. The expression used is that the divorced wife has received the dower and other customary dues. The crux of the matter is whether the opposite party will be deemed to have received the money of the value of the Asharfi from the date the money order was remitted or not. Remission is one thing, tender is another thing and receiving payment is a third thing. What the law provides is that the divorced wife has received the amount. When that is the position, once the addressee was not found on the address, remission alone would not tantamount to wife having received the amount. The proper course for the applicant was to either find fresh address and whereabouts of the opposite party and then remit the sum again by money order or more easier course was there, namely, to obtain tender from the court, which granted maintenance allowance, and then deposit the sum by tender to the credit of the opposite party. This was not done and actually the sum was received back by the applicant, who pocketed it and then deposited the sum only on 1-2-1978. He will not be exonerated from any earlier date and the orders of the courts below are proper and just.

In the result this application u/s 482, Code of Criminal Procedure, is dismissed.