Judgement

BOSE J: This is a quarrel between husband and wife. The appellant is the husband.

2. On 29-3-1946 the respondent obtained an order against the appellant under S.488, Criminal P.C. for payment of maintenance at the rate of Rs. 70 -a month. The order was obtained from the Court of a Magistrate at Lahore which is now in Pakistan. It is not disputed that at that time the Court making the order was a proper and competent Court nor is it disputed that prior to the partition of India the order could have been executed under S. 490. Criminal P. C. in the Court of the First Class Magistrate at Delhi. The order was directed to have effect from 31-3-1947 .

3. The appellant paid the respondent a sum of Rs. 240/- in instalments in pursuance of this order but as, according to the respondent, a further sum of Rs.860/- was due on 18-3-1949 she applied under S. 490 to the Court of the Magistrate, First Class, Delhi, for its enforcement.

4. The appellant resisted on several grounds. We are only concerned with the one which touches jurisdiction. On 15-8-1947 the partition of India came into effect and Lahore became foreign territory and the Lahore Courts foreign Courts. The appellant s contention is that on that date the order of the Lahore Magistrate became a foreign order in executable under S. 490. He failed in the first Court and failed in revision both before the 2nd Additional Sessions Judge at Delhi and in the High Court of East Pujab at Simla. He has appealed here.

5. We are of opinion that the lower Courts and the High Court are right. Confining our remarks to applications under S. 490, with which alone we are concerned, we see no reason why an order which was competent and valid at the time to was made and which could have been enforced in Delhi should cease to be competent simply by reason of the partition.

6. So far as S. 490 is concerned, there is no bar. It is general in its terms and imposes no impediment. The relevant portion is as follows:-

A copy of the order of maintenance shall be given....... to the person in whose favour it is made. . . .. and such order may be enforced by any Magistrate in any place where the person against whom it is made may be."

Of course this presupposes a competent order enforceable in India and we agree that a foreign order could not be enforced in this way. But the order here was a competent order of a domestic tribunal when it was made and could then have been enforced in the Delhi Court. In the absence of any specific bar we see no reason why it should lose its Indian nationality simply because the place in which it was born was later made foreign territory.

7. A number of enabling provisions were passed after the partition to meet certain special cases of this kind and of course, where there is specific legislation, effect must be given to it. But where, as here, there is nothing, then in the absence of a specific bar we hold that an order which was and competent when it was made and which was passed by a tribunal which was domestic at the date of its making and which could, at that have been enforced in an Indian Court, does not lose its efficacy by reason of the partition.

8. In argument reliance was placed on a number of provisions of the kind we have referred to above and it was contended that the very fact that such legislation was felt to be necessary indicates that in its absence the special rights and remedies which are either continued or conferred by these Acts and Orders would have been lost. We are not impressed with this because it can equally well be argued, and in fact was so argued for the respondent, that the fact that the Legislature which was so meticulous in providing for these other matters did not consider it necessary to make provision for this indicates that it was unnecessary to do so. In our opinion, where express provision has been made it was either by way at abundant caution or because other factors made it desirable to lay down a special procedure.

9. Take, for exampl