Dalip Singh vs Smt. Balwinder Kaur and others

Pritam Singh Pattar, J.—This is a revision petition filed by Dalip Singh, son of Kirpa Singh, resident of village Ganj Singh Pura, District Ganganagar, Rajasthan, against the judgment dated May 30. 1972, of the Additional Sessions Judge, Ferozepore, dismissing his revision against the judgment dated July 19, 1971 of the Judicial Magistrate 1st Class, Zira, by which he sentenced him to 12 months'' imprisonment for non payment of the arrears of maintenance to his wife and children and directing that a warrant of his arrest be issued.

The facts of this ease are that the Judicial Magistrate, Zira, by order dated September 13, 1962 had directed the petitioner, Dalip Singh to pay maintenance at the rate of Rs. 25/- per mensem to his wife Balwinder Kaur and at the rate of Rs. 15/- per mensem to each of his children, respondents 2 to 5. Balwinder Kaur and her children made an application in the Court of the Judicial Magistrate, Zira, for the realisation of Rs. 1020/- as arrears of maintenance for the period from 16th February, 1970 to 16th February, 1971. Notice of this application was issued by the Magistrate to Dalip Singh who filed objections u/s 488(1), Criminal Procedure Code alleging that he was suffering from tuberculosis and his income had decreased and it was about less than Rs. 100/-and, therefore, the rate of maintenance should be decreased. He averred that his son Sukhwant Singh was aged 23 years of age and was employed as a linesman in the Electricity Department and was getting more than Rs. 200/- P M. and so he could not recover the maintenance allowance from him. He further alleged that land was purchased in the names of Balwinder Kaur, Sukhwant Singh and Karamjit Singh and mutation was attested in their favour on January 28, 1961, and the annual income of that land was Rs. 3000/- and therefore, this order of maintenance in favour of the respondents should be cancelled. This petition was contested by Balwinder Kaur and her children. After hearing the counsel for the parties, the Magistrate rejected the objection petition and sentenced Dalip Singh to imprisonment for a period of 12 months and directed that a warrant of arrest may be issued and he may be sent to the Judicial lock-up as provided in section 488, Criminal Procedure Code. Against this order the petitioner filed a revision petition in the Court of the Additional Sessions Judge who dismissed the same on May 30, 1972. Thereafter this revision petition was filed in the High Court.

The learned counsel for the petitioner contended that the order of the Magistrate sentencing the petitioner to imprisonment for 12 months is illegal because according to section 488(3), Criminal Procedure Code, in the first instance a warrant for attachment of the property to satisfy the arrears must be issued and if the whole or any part of the arrears remained unpaid after execution of the warrant, then the imprisonment can be ordered. Section 488(3) reads as follows:

If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month''s allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month of until payment if sooner made.

In Jagannath Patra Vs. Purnamashi Saraf and Another, the facts were that two children aged 11 years and 9 years, obtained an order of maintenance u/s 488, Criminal Procedure Code against Jagannath Patra on October 15, 1963. The minors made an application u/s 488(3). Criminal Procedure Code, for recovery of the arrears for the period from 5th October, 1963 to 5th April, 1965. The Magistrate issued warrant of attachment of moveable and immoveable properties and warrant of arrest of Jagannath. Against this order Jagannath filed a revision petition before the Sessions Judge at Bolangir who made the following recommendations to the High Court for quashing the order of the Magistrate:

(i) That the issue of warrant of arrest before the warrant of attachment and sale of the properties failed to satisfy the arrears was illegal; and

(ii) An amount for more than one year was not recoverable. On these facts it was held by the Orissa High Court that it was apparent from the provision of section 488(3), Criminal Procedure Code, that in the first instance warrant of attachment of the movable and immovable properties would be issued, the properties would be sold and applied for discharge of the arrear dues and if on such steps being taken the arrear amount still remains unpaid, it is open to the Magistrate to issue a body warrant and not until then. The order of the Magistrate issuing simultaneously warrant of attachment anybody warrant was not in accordance with law and the recommendations of the Sessions Judge were accepted and the order of the Magistrate was quashed and the case was sent back to the Magistrate directing him to dispose of the case in accordance with law.

It was held in Rangaiah v. Rukmini Bai 1972 M.L.J. (Cr.) 360:

The words for the whole or any part of each months allowance remaining unpaid after execution of the warrant'' in section 488 (3) will have no meaning if it was the intention of the Legislature that even without recourse to a warrant of attachment, warrant of imprisonment can be ordered. What is contemplated is that in the first instance a warrant of attachment of the property to satisfy the demand of arrears should issue and only if the whole or any part of it remains unpaid after execution of the warrant, imprisonment can be ordered, Therefore, the issue of a warrant of attachment and sale is a condition precedent to the issue of a warrant for imprisonment. The warrant for arrest directed to be issued without first having recourse to attachment and sale of the property of the Respondent is illegal.

I am in respectful agreement with the law laid down in these authorities. The legal position, therefore, is that it is apparent from the provisions of section 488(3) of the Code of Criminal Procedure that in the first instance, a warrant of attachment of the moveable and immoveable properties must be issued to satisfy the arrears of maintenance and if after the execution of the warrant the whole or any part of the arrears remains unpaid, then and then alone imprisonment of the defaulter can be issued by the Magistrate. The words "for the whole or any part of each month''s allowance remaining unpaid alter execution of the warrant" in section 488(3) Criminal Procedure Code, will have no meaning if it was the intention of the Legislature that even without recourse to a warrant of attachment a warrant for imprisonment could be issued. The issue of warrant of attachment of property is a condition precedent to the issue of a warrant to imprisonment. The warrant of arrest directed to be issued without first having issued a warrant of attachment of property is illegal. In the instant case the Magistrate without issuing the warrant for attachment of the moveable and immoveable properties of the petitioner, Dalip Singh, passed orders of his imprisoment and this order is, therefore, illegal and must be quashed.

The learned counsel for the respondents relied on Karson Ramji Chawda Vs. The State of Bombay, . In that case the facts were that Shri Karson Ramji Chawda was ordered by the Magistrate to pay maintenance to his wife and his daughter. He made a default and failed to comply with the order. The wife made an application that there had been default in the payment of four months'' allowance and the Magistrate issued a warrant of attachment of property but the same could not be executed as the petitioner Chawda had no property. The wife then made an application u/s 488 (3) Criminal Procedure Code and on that application the Magistrate passed an order sentencing the applicant to be imprisoned for a term of 15 days in respect of each month for which the allowance remained unpaid. The contention raised before the High Court on behalf of the husband was that in respect of one warrant issued, the sentence which can be inflicted bv the Magistrate can only be one month and not exceeding one month. On these facts the High Court held that Court can issue one warrant and impose cumulative sentence of imprisonment and separate warrant in respect of each term of imprisonment was not necessary and that the order of the Magistrate was correct. However, the following observations in the body of the judgment were also made:

The power of the Magistrate to sentence the person failing to comply with the order is not dependent upon the issue of the warrant or in other words the issue of the warrant is not a condition precedent to the jurisdiction of the Magistrate to sentence the applicant. Therefore, when so read it is clear that the power to sentence is for the whole or any part of each month''s allowance remaining unpaid after the execution of the warrant to imprisonment for a term which may extend to one month or until payment if sooner made. These words clearly lay down the power of the Magistrate. The power of the Magistrate is in respect of whole or any part of each month''s allowance remaining unpaid to sentence the person for a term not exceeding one month.

These observations are abitor dicta. The only point for decision which was referred to the Full Bench was that in passing the sentence of imprisonment for two months the Magistrate exceeded the jurisdiction conferred on him u/s 488(3), Criminal Procedure Code and in respect of one warrant issued, the sentence which can be inflicted by the Magistrate can only be one month and not exceeding one month. Therefore, these observations cannot be considered to be laying any law on the point involved in the present case. As mentioned above in the aforesaid Bombay case, the Magistrate had issued a warrant of attachment of property of the husband, but the warrant could not be executed as the husband had no property. Thereafter the wife made an application u/s 488(3), Criminal Procedure Code for arrest of her husband and thereafter he was sentenced to imprisonment. The question whether the sentence of imprisonment could be passed in the first instance without having issued a warrant of attachment of property was not directly in issue in that case. This authority was also distinguished in the aforesaid authority of the Madras High Court in Rangaiah''s case (supra). Therefore, this Full Bench ruling of the Bombay High Court does not help the respondents.

The counsel for the petitioner urged that in the objection petition, the petitioner had urged that his son Sukhwant Singh had become major and he was employed in the Electricity Department drawing about Rs. 200/- P.M. as a linesman and, therefore, the orders of maintenance passed in his favour should stand cancelled. This contention was raised before the Additional Sessions Judge who rejected the same on the ground that an application u/s 489, Criminal Procedure Code should have been made for this purpose. This view is not correct. In U Ba Thaung v. Ma Aye AIR 1932 Rang. 97, it was held:

The words ''sufficient cause'' are very wide to justify the raising of a plea that the order of maintenance passed u/s 488 in favour of a child has become spent owing to the child having attained majority and being able to maintain itself. Consequently if the Court finds on defence raised that the child has attained the age of majority and is able to maintain itself during the period for which arrears are claimed, it should refuse to grant those arrears.

To the same effect was the law laid down in Ma E Shi v. U San Kai AIR 1939 Rang. 67 and Ram Kishore Vs. Sm. Bimla Devi and Another, . In view of the law laid down in these authorities, the Magistrate should have decided the objections raised by the petitioner in his objection petition. As a result the revision petition is accepted and the order of the Magistrate rejecting the objection petition of the petitioner filed u/s 488(3), Criminal Procedure Code and sentencing him to imprisonment for 12 months, is set aside and the case is sent back to him for disposal in accordance with law and the observations made above.