Ghulam Mohammad Malla vs Mst. Halima and Another

Syed Bashir-Ud Din, J.—First Additional District and Sessions Judge Srinagar, has made reference in terms setting aside and modifying

orders dated 20-5-1998 and 28-5-1998, passed by City Munsiff, Judicial Magistrate, Srinagar, in Section 488 Cr.P.C. enforcement proceedings

whereunder, Ghulam Mohammad Mala has been sent to Jail for nonpayment of the accumulated maintenance charges of Rs. 50,000/- which the

said Ghulam Mohammad Malla was ordered to pay to his wife and child. Both Mst. Haleema wife and Gull Adil minor son of Ghulam Mohammad

Malla were awarded monthly maintenance of Rs. 400/- and Rs. 300/-respectively u/s 488 of Cr.P.C. on 4-5-1996, from the date of application

namely, 8-2-1988. As the said Ghulam Mohd. Malla failed to pay the accumulated maintenance, the Munsiff, Judicial Magistrate, on proper

motion passed an order on 20-5-1998, holding husband liable to pay Rs. 50,000/- as arrears of maintenance, due to the mother and the child.

Since Ghulam Mohd. Malla failed to pay and clear the outstanding and wilfully committed default, the Magistrate issued non-bailable warrant and

directions to the Superintendent Central Jail, Srinagar to keep him in custody in Jail till he deposits the amount of maintenance or otherwise

directed by a competent Court of law. The S. H. O. was also directed to execute the warrant and produce the applicant before the Court on 25-

5-1998.

However, the said Ghulam Mohd. Malla was produced before the Court on 28-5-1998. The Magistrate passed an Order that as Ghulam

Mohd. Malla has committed wilful default in the payments, therefore, committed him to prison for undergoing imprisonment till he liquidates the

whole amount of arrears of maintenance.

Both these orders were challenged in revision before the District and Sessions Judge, Srinagar, wherefrom the revision was assigned to the

Court of 1st Additional Sessions Judge. The Court of 1st Addl. Sessions Judge has dealt with the matter elaborately and reached the conclusion

that the direction of the trial Magistrate of committing the husband to prison for indefinite period is not covered by any provision of law and

therefore has recommended though somewhat vaguely in too general terms, for appropriate orders by this Court.

Record is available. Counsel has been heard and the matter examined.

Ghulam Mohd. Malla, husband and father of Haleema and Adil, is in arrears in payment of maintenance. He has not paid maintenance in terms

of the orders of Judicial Magistrate in proceedings u/s 488 Cr.P.C. which have accumulated to Rs. 50,000/-. It is not also disputed by the counsel

for the parties that the Magistrate has the power and authority to sentence a defaulter/husband to imprisonment for at least one month for the whole

or part of each month's allowance which has remained unpaid after the execution of the warrant unless payment is made earlier. The question in this

case is, whether the Magistrate could sentence the defaulting husband to imprisonment for an indefinite period or to a term co-extensive with

payment or deposit thereof in Court.

The counsel for the wife and child submits that the impugned order of the trial Magistrate of putting the husband in jail for an indefinite term

cannot be disturbed in view of the law laid down by the Apex Court in the case of Kuldip Kaur Vs. Surinder Singh and Another, , as the husband

has wilfully failed to pay the maintenance charges granted by the Magistrate. The counsel for husband, submits that the husband cannot be put

behind the bars indefinitely, but is to be dealt with in accordance with the provisions of Section 488 Cr P. C. (Corresponding to Section 125 of

Cr. P. C, elsewhere in the country), even if, default is proved, though the husband has even before the Court of reference submitted that he is

prepared to pay maintenance amount, but in instalments.

In the case of Kuldip Kaur Vs. Surinder Singh and Another, , the Supreme Court rejected the plea of the husband that, having undergone the

jail term for non payment of arrears, he was absolved and his liability for payment of the maintenance arrears stood satisfied. The Court on the

language of Section 125 Cr.P.C. found, that sentencing of the husband to jail is just a mode of enforcement, but not a mode of satisfaction

discharge of the liability. The order of the Magistrate requiring the husband to pay the amount of monthly allowance, was laid, not to wipe out the

liability as not recoverable for the reason that the husband was sent to jail. It was in these circumstances, the Supreme Court, after ordering

payment of monthly allowance, on 15th of every month, laid down that in case the husband fails to comply with the order of the Supreme Court,

the. Magistrate shall issue warrant for his arrest and cause him to comply with the Supreme Court order and that he shall not be released till he

makes the payment.

It is obvious that indefinite term co-extensive with non-payment of awarded maintenance was ordered by the Apex Court, in case the orders of

the Supreme Court was flouted or violated by the husband. The authority in terms order imprisonment in a wholly different set of circumstances,

which apart from the principle laid cannot be applied in totality to the facts and circumstances of this case.

In the case at hand provisions of Section 488 Cr.P.C. provides that the order of maintenance of wives and children u/s 488 Cr.P.C. can be

enforced in case of failure to comply with the order by issuance of a warrant for levying the amount due in a manner under the code for levying

fines. Besides the default on failure to show sufficient cause can be sentenced ""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, unless payment is made earlier.

Chapter XXVIII which deals with the execution of orders, warrants etc. provides for the mode and manner of recovery of fine u/s 386

Cr.P.C.

Seen thus, the maintenance order can be enforced on husbands' failure to maintain wife and child without sufficient cause, like a warrant for

recovery of fine. In other words maintenance amount can be recovered u/s 386 Cr.P.C. either by attachment and sale of any moveable property of

the husband or by issuance of process to the Collector of the concerned District, authority (authorising) him to release the amount by execution

according to Civil process against the moveable or Immovable property or both of the defaulter, husband. Besides Section 488(3) clearly provides

that on proof of default in payment of each month unpaid allowance or part thereof, defaulting husband can be sentenced to one month's simple

imprisonment, for each months default or default in respect of any part of a month which has remained unpaid.

Seen thus, the Magistrate has to calculate the defaults made in payment of maintenance, may be accumulated arrears or otherwise of monthly

payments and then work out the term of imprisonment which the husband has to undergo, other conditions applying as laid by Section 488. On

plain language of the section, imprisonment of the husband herein for indefinite period of coextensive with payment of fine is illegal and beyond the

pale of law.

For the aforesaid reasons, reference is accepted and impugned orders are set aside and modified to the extent that the Judicial Magistrate

(City Munsiff) Srinagar shall calculate unpaid maintenance dues on monthly basis of the maintenance charges which are apt to be recovered under

law and then besides following the procedure as provided for realising the levying of fines in terms of Section 386 of Cr. P. C, shall workout the

period of imprisonment which the husband (if at all same is imperative under law) is to undergo for default in respect of default of each month or

part thereof, within the meaning of section 488 Cr.P.C.

The decision shall be certified to the Court below while sending record.