Order. — This is a revision against the order of the Court of the District Magistrate, West Godavari, setting aside the order awarding maintenance to the petitioner under section 488, Criminal Procedure Code. The petitioner and the respondent are Muhammadans. She married the respondent some years ago and had three children by him. She filed M. C. No. 5 of 1950 on the file of the Sub-Divisional Magistrate’s Court, Eluru, under section 488, Criminal Procedure Code and obtained an order for maintenance at the rate of Rs. 30 per month. Subsequently in M.C. No. 2 of 1952, the Honorary Additional 1st Class Magistrate enhanced the rate of maintenance from Rs. 30 to Rs.32 per month. The respondent, alleging that he divorced the petitioner by uttering talak thrice before respectable people on or about 27th April, 1954, filed M.C.No.10 of 1954 before the District Magistrate, Eluru, for cancelling the order of maintenance. After infructuous attempts to serve the petitioner she was declared ex parte. After examining P.W. 1 and the documents filed, the learned District Magistrate declared that the orders made in M. C. Nos. 5 of 1950 and 2 of 1953 were unenforceable from 27th April, 1954 and accordingly set them aside. The wife has filed the aforesaid revision. The learned counsel for the petitioner contended that the District Magistrate had no jurisdiction to cancel the order of maintenance on the ground that the wife was divorced. He also argued that the learned Judge violated the principles of natural justice in making an order behind the back of the petitioner. The learned counsel for the respondent countered the argument by contending that the Magistrate had ample power to do so under section 489, Criminal Procedure Code and that under the provisions of that section the presence of the wife was not required for making any order against her. To appreciate the contentions of the parties, it may be convenient at this stage to read the relevant provisions of the Criminal Procedure Code. Section 488. (1) If any person having sufficient means neglects or refuses to maintain Ms wife the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate, or a Magistrate of the 1st class may, upon proof of such regleet or refusal, order such person to make a monthly allowance for the maintenance of his wife..........at such monthly rate.................... Section 488. (1) If any person having sufficient means neglects or refuses to maintain Ms wife the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate, or a Magistrate of the 1st class may, upon proof of such regleet or refusal, order such person to make a monthly allowance for the maintenance of his wife..........at such monthly rate.................... (6) All evidence under this chapter shall be taken in the presence of the husband..................or when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed in the case of summons cases: Provided that if the Magistrate is satisfied that he is wilfully avoiding service or wilfully neglects to attend the Court, the Magistrate may proeeed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown on application made within three months from the date thereof. Section 489. (1) On proof of a change in the circumstance of any person receiving-under section 488 a monthly allowance or ordered under the same section to pay a monthly allowance to his wife or child, the Magistrate may make such alteration in the allowance as he thinks fit: Provided that if he increases the allowance the monthly rate of one hundred rupees in the whole be not exceeded. Section 490. A copy of the order of maintenance shall be given without payment to the person in whose favour it is made, or to his guardian if any or to the person to whom the allowance is to be paid, and such order may be enforced by any Magistrate in any place where the person against whom it is made may be on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance due. A combined reading of the provisions may be stated thus: A wife, who has been neglected or refused to be maintained, may apply to a Magistrate against her husband for payment of a monthly allowance. Such an application shall be decided in the presence of the husband. But to prevent abuse of the provision an ex parte procedure is prescribed, which enables the Magistrate to pass an ex parte order and also gives a right to the husband to get it set aside for good cause. Such an application shall be decided in the presence of the husband. But to prevent abuse of the provision an ex parte procedure is prescribed, which enables the Magistrate to pass an ex parte order and also gives a right to the husband to get it set aside for good cause. If there is a change in the circumstances of either party the order can be altered suitably. The order originally made or subsequently modified can be enforced by a Magistrate against a person bound by that order. The entire fascicule of the sections pre-supposes the continued existence of the marital relationship. If a woman files an application under section 488 (1) for maintenance against her alleged husband the said claim can certainly be defeated by alleging and proving that she is not his wife, for in that case, the foundation for the claim disappears. There is consensus of judicial opinion in. support of this view. It has been held by all the High Courts that it is the duty of the Magistrate to decide that question if raised. The ratio decidendi of the; said decisions is clearly brought out by Mahmood, J., in a very early decision In the matter of the petition of Din Muhammad1, wherein the learned Judge stated that it is “as essential to 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 a Magistrate must, when a question of divorce arises, determine on such evidence as may be before him, whether there has or has not been a legally valid divorce.” It cannot also be disputed that, if the conjugal relationship ceases, the order for maintenance becomes unenforceable under section 490. Criminal Procedure Code. This view has been accepted by a long line of cases, Abdur Rohoman v. Sakhina2, In re Kasam, Pirbhai3,In re Abdul Ali Ismailji4, Mahomed Abdi Ali v. Ludden Sahiba5 and Ahmed Kasim Mollay v. Khatu Bibi6. Criminal Procedure Code. This view has been accepted by a long line of cases, Abdur Rohoman v. Sakhina2, In re Kasam, Pirbhai3,In re Abdul Ali Ismailji4, Mahomed Abdi Ali v. Ludden Sahiba5 and Ahmed Kasim Mollay v. Khatu Bibi6. The principle accepted by those decisions is succinctly stated by Mahmood, J., at page 229: “The whole of chapter XLI, Criminal Procedure Code, so far as it relates to the maintenance of wives, contemplates the existence of conjugal relation as a condition precedent to an order of maintenance and, on general principles, it follows that as soon as the conjugal relation ceases, the order of maintenance must also cease to have any enforceable effect. When and in what manner, a cessation of the conjugal relation takes place, is-a question which ex necessitate rei must be determined according to the personal law to which the parties concerned are subject.” There ends the unanimity of opinion. There is a conflict on the question whether, in such a contingency, an application, under section 489, Criminal Procedure Code, is maintainable. Under section 489 an order fixing a monthly allowance under section 488 can be altered on proof of a change in the circumstances of a party to that order. The question is whether the dissolution of the marriage by divorce is one of the changes in circumstances which empowers a Court to alter the allowance given to the wife. There are two views on this question. Mahmood, J., In the matter of the petition of Din Muhammad1, while construing the provisions of section 536 of Act X of 1872 corresponding to the present section 489, held that the alteration in the allowance contemplated therein only refers to a power to alter the amount and not to a total discontinuance thereof. This view of Mahmood, J., was accepted by the Full Bench in Shah Abu Ilyas v. Ulfat Bibi2. This view of Mahmood, J., was accepted by the Full Bench in Shah Abu Ilyas v. Ulfat Bibi2. Aikman, J., who delivered the leading judgment, made the following observations: “The change in circumstances referred to in section 489 is a change in the pecuniary or other circumstances of the party paying or receiving the allowance which would justify an increase or decrease of the amount of the monthly payment originally fixed and not a change in the status of the parties which would entail the stoppage of the allowance.” A contrary view was expressed by the Nagpur High Court in Emperor v. Shaikh Daud3, wherein Halifax, A.J.C., countered the arguments advanced for the former view in the following terms: “I am unable in the first place to see what the position of the words wife or child has to do with the question. They are merely a part of the description of one of two classes of person in whose circumstances a change would empower the Magistrate to make an alteration in the allowance. They are indeed otiose and might easily have been omitted. As to the limitation of the amount, that is merely a maximum and to say that because of thaty limitation the alteration could not be to nothing would be to say that because of the same limitation in section 488 the Magistrate could not refuse to give an allowance on proof that the applicant was not the wife or child of the non-applicant.” The former is a stricter view but the latter is a more equitable one. Though equity has no place in construing statutory provisions, there is no reason why it should not be adopted if the express words without doing violence to the language bear, such a meaning. Though equity has no place in construing statutory provisions, there is no reason why it should not be adopted if the express words without doing violence to the language bear, such a meaning. Yahya Ali, J., In re Mohamed Rahimtullah4 had to consider the conflict between these two views and concluded his discussion in the following words: “I hold, therefore, in agreement with the view expressed by the Nagpur High Court in the case cited above which is the view cons1stently obtaining in all the Courts that in circumstances such as those whieh are assumed to ex1st in the present ease the Magistrate is not only bound to refuse to enforce the order under section 490, Criminal Procedure Code, but is also empowered under section 489, Criminal Procedure Code, to alter the amount payable under it to nothing, that is to say by a combined effect of both these provisions he is competent to set aside the order.” So too, Krishnan, J., in Meenatchi Ammal v. Karuppanna Pillal5, rejected the contention that, under section 489 the Magistrate could not altogether cancel the order of maintenance but could only alter it or reduce it. In the learned Judge’s view the word ‘alter’ was not used in any such restricted meaning and the reduction of the maintenance to nothing would also come within the meaning of the word “alteration”. The opinion expressed by Kuppuswami Iyer, J., at the earlier stage when the learned Judge remanded the matter for fresh disposal was explalned by Yahya Ali, J., In re Mohamed Rahimtullah4, when he finally disposed of the case on the ground that the observations were only obiter. The legal position may, therefore, be summarised: The ex1stence and the continuation of conjugal relationship is the foundation for an order directing payment of maintenance under section 488, Criminal Procedure Code and for (enforcing it under section 490, Criminal Procedure Code. The Magistrate is, therefore, bound to decide the question of the woman’s status as a wife, or the question of divorce, if raised, at the time of making the order or even at the time when the wife seeks to enforce it. To that extent, there is no conflict. So much conceded, I do not see any justification for not conferring that power on a Magistrate to cancel an order of maintenance, if an application to that effect is filed before him. To that extent, there is no conflict. So much conceded, I do not see any justification for not conferring that power on a Magistrate to cancel an order of maintenance, if an application to that effect is filed before him. The question is whether the wording of section 489(1) is comprehensive enough to take in an application to cancel an order of maintenance on the ground of divorce. It may be that the wording is susceptible of conflicting views. But when the power of the Magistrate to decide the status of the women is conceded, there is no reason to prefer the narrower view to a more comprehensive one. The words “change in the circumstances” and “alteration in the allowance” are wide enough without doing violence to the language, to take in divorce and cancellation of the allowance. Divorce of the wife is certainly a change in her circumstance for she loses her status as a wife. Consequently the Magistrate can alter an order giving allowance by cancelling it. This “interpretation” would prevent a lacuna in the Code and also multiplicity of proceedings. I would prefer to accept the broader view expressed by Yahya Ali, J., to that of Mahmood, J. I would hold that the application under section 489 read with section 490 was maintainable for cancelling the order giving maintenance to the petitioner. It is then argued for the petitioner that from a comparative study of the provisions of sections 488(5) and 489 — section 488(5) expressly provides for ex parte procedures whereas section 489 does not prescribe any such procedure — it is clear that in the latter case, no ex parte order can legally be made. An equally extreme contrary view was suggested by the learned counsel for the respondent that, in the case of a cancellation or modification of an order affecting the wife, her presence is not legally required under the section. The two views if I may say so are based on a misapprehension. There is a distinction between ex parte procedure and the procedure complying with the principles of natural justice. Unless a statute expressly conferred a power, a final decree or order, whether ex parte or on merits, cannot be set aside. The two views if I may say so are based on a misapprehension. There is a distinction between ex parte procedure and the procedure complying with the principles of natural justice. Unless a statute expressly conferred a power, a final decree or order, whether ex parte or on merits, cannot be set aside. But in accordance with the maxim audi alteram, partem no judicial order can be made affecting the rights of a person unless a reasonable opportunity has been given to him to show why it should not be made. This necessarily implies a notice to the affected party giving him an opportunity to show cause. The fact that section 488 (6) provides that evidence should be taken in the presence of the husband and the fact that such a provision is absent in the case of an application for modifying that order cannot, in my view, by necessary implication abrogate the salutary rule based upon principles of natural justice that a judicial order cannot be made affecting a party without giving reasonable notice. In the ease of an order against the husband for maintenance, a specific provision was made as it would be an executable order. But once an order is made in favour of the wife, there is no reason or principle why it should be modified either in favour of the husband or wife without giving them reasonable opportunity to show cause against it. In such circumstances, the procedure should be governed by principles of natural justice. Though an abortive attempt was made to serve the petitioner, I am not satisfied from the record that such an opportunity was given. Now that the petitioner is before this Court in the interests of justice, the matter may be remanded to be disposed of, in her presence in accordance with law. Before I leave this case another argument advanced by the learned counsel for the respondent may be mentioned. It is said that the divorce was in bidaat (sinful or abominable) form and not in ahasan (best) form and that the bidaat form, operates as an immediate and effective ‘divorce. This question also may be raised before the Magistrate. In the result the order of the Magistrate is set aside and the matter is remanded to him for fresh disposal according to law. D.L.N. ------- Order set aside and case remanded.