Goverdhan Dass vs Smt. Bhagmatu

Chet Ram Thakur, J.—This petition under Article 227 of the Constitution read with sections 401 and 482 of the Code of Criminal Procedure has been filed by Goverdhan Dass, the husband of the Respondent, challenging the order of Judicial Magistrate, passed on September 8, 1976, rejecting the objections of the Petitioner with regard to the maintainability of the execution petition, as contemplated u/s 488(3) of the Code of Criminal Procedure, 1898.

The Respondent had filed an application before the Sub-Divisional Magistrate, Rampur, for grant of maintenance for herself and her minor children. This application was allowed and an amount of Rs. 75/- per month was granted by the Magistrate on account of maintenance against the present Petitioner. He, however, did not make the payment as directed by the Magistrate, therefore, the Respondent filed an application on March 18, 1975, for enforcement of the order for payment of the arrears of maintenance from 4-11-1970 to 4-3-1975. This application was opposed by the Petitioner on the ground that the learned Magistrate had no jurisdiction to award a composite amount by way of maintenance to the wife and children. According to the Petitioner, the Magistrate should have awarded separate amounts to the wife and to each child. According to him, the composite order of maintenance was in executable. The learned Magistrate over ruled the objection raised by the husband. He held on the basis of Chander Parkash Bodh Raj Vs. Shila Rani Chander Prakash, that it is not imperative that the Court should determine separately the amount of maintenance for the wife and children.

It is against this order of rejection of the objection that the husband has filed this petition. Shri Hira Singh Thakur, Learned Counsel for the Petitioner, has sought to raise three points in this petition. The first is that the order allowing maintenance does not specify the amount of maintenance payable to the wife and each child separately. This order, therefore, according to him, is without jurisdiction and as such is not executable. The second point is that the quantum fixed by the learned Magistrate is too excessive and high. The Petitioner is a Government servant, having a low salary and is not in a position to pay such a huge amount by way of maintenance. The third point raised is that the learned Magistrate could not attach more than 1/3rd of his basic salary, but the learned Magistrate had ordered the attachment of the entire salary of the Petitioner, and, according to him, this order is wholly unwarranted.

Learned Counsel on the opposite side has objected to the raising of points 2 and 3 on the ground that the same are not taken up in the grounds of revision. I have gone through the petition and I find that there is no such ground taken and as such he cannot now be permitted to take up new grounds which he has failed to take up in the petition. The Learned Counsel for the Petitioner, however, contends that he has filed an application, Cr. M.P. 133/76, whereby he has taken up these points. But, it may be stated that this is an application purporting to be one u/s 482 Code of Criminal Procedure 1973 praying for the suspension of the operation of the order of execution or enforcement of the order of maintenance, as contemplated u/s 488(3) CPC Nothing can be spelt out from this application if the Petitioner has sought to raise these additional grounds. Moreover, in order to raise additional grounds he is to seek permission of the Court and which he did not. Therefore, the latter two points cannot be permitted to be raised.

Now I am left only with the first point, whether the order of maintenance passed by the learned Magistrate which is a composite order granting maintenance to the wife and the children is unenforceable. According to the Learned Counsel the order is without jurisdiction. He placed reliance on Bai Prabhavati Sumatilal Dholidas Vs. Sumatilal Dholidas, and Chhela Vs. Smt. Sohani,

In Bai Prabhavati''s case (supra) there was a reference made by the Additional Sessions Judge, Ahmadabad, recommending that the order made by the Magistrate granting a monthly maintenance of Rs. 100/- in respect of the wife, the daughter and the son was not correct. In the opinion of the Magistrate Rs. 100/- should have been awarded to the wife and Rs. 70/- to the two children. But on the basis of the authority reported as Palmerino Vs. Mrs. Palmerino, which was binding on him he awarded a sum of Rs. 100/- in respect of all the three. According to the learned Additional Sessions Judge the decision of the Bombay High Court as reported in Palmerino Vs. Mrs. Palmerino, was in conflict or contrary to the decisions taken by various other High Courts and he, therefore, recommended that the decision should be reconsidered. The Full Bench of the Bombay High Court, therefore, held that the order was bad inasmuch as the Magistrate made a compendious order allowing Rs. 100/- both to the wife and the children. Section 488 gives effect to the principle that a wife and a child have independent right to be maintained by husband or father and, therefore, in making an order u/s 488 the Magistrate must award maintenance to each one of the parties appearing before him. In using the expression "in the whole" the legislature was not limiting jurisdiction of the Magistrate in passing an order in respect of all the persons whom he is bound to maintain, allowing maintenance not exceeding a sum of Rs. 100/-. Further, it was held that the Magistrate had the jurisdiction to award separately to the wife and each of the child of the husband asum not exceeding Rs. 100/-. The High Court, therefore, modified the award and allowed Rs. 100/- to the wife and Rs. 35/- to each of the two children. This was a case under the provisions of Section 488 before its amendment in 1955, which now provides for grant of maintenance upto the extent of Rs. 500/- instead of Rs. 100/-. Therefore, this authority has got no relevancy. Moreover, this is a case where the revision was filed by the husband against the original order of award of maintenance. But, in the instant case the revision has been filed against overruling the objection raised during the course of execution or enforcement of the order of maintenance. It cannot be disputed that the Magistrate who passed the original order which was sought to be executed or enforced and against the excitability of which are objection was raised, was a person competent or having jurisdiction to pass the same. There was no lack of inherent jurisdiction in the court which decided the case whether rightly or wrongly. If the order was wrong the only remedy open for the husband was to go in revision challenging the validity of the order on the ground that it was a composite order which was not warranted under the law. But, he did not challenge the same. Therefore, the order has become final. At the execution stage the husband cannot challenge that order on the ground that the court had no jurisdiction to pass such an order. The only grounds that are open to the husband against whom an order of maintenance is passed are that the wife was living in adultery and that she had refused to live with him without sufficient reasons. But, one of these grounds have been taken by the Petitioner before the Magistrate while the order was sought to be enforced. Therefore, it was not open for the Petitioner to take up this ground of jurisdiction because the order passed was in exercise of the jurisdiction which vested in the Magistrate.

In the latter case of Chhela (supra) also it was a reference made by the Sessions Judge on appeal against the order of the Magistrate granting maintenance to the wife and children by a joint order. This was also not a case where an objection with regard to the jurisdiction or with regard to the invalidity of the order 01 the ground of its being composite was taken at the execution stage.

Gupteshwar Pandey Vs. Smt. Ram Peari Devi, lays down that an examination of the scheme of Section 488 will show that Sub-sections (1) and (2) of this section are in the nature of proceedings prior to a decree of the civil court, whereas Sub-section (3) may be compared to proceedings in execution of such a decree. While executing a decree a civil court cannot go behind the decree and reopen the questions decided between the parties at the stage of rendering the decree. Like wise in a proceeding under Sub-section (3), the Magistrate cannot be called upon to reconsider or go once again into those very questions which could be raised or which were decided at the earlier stage when the claim for maintenance was upheld and a direction for payment of the monthly allowance had been made. In the present case it would appear that no objection was raised by the husband before the Magistrate that no composite award by way of maintenance could be made and that the wife had to claim maintenance separately for herself and children. Therefore, the learned Magistrate was perfectly justified in overruling the objection because it could not reopen the question which had not been agitated before the court at the time when the application was pending before the court.

Under Sub-section (3) of Section 488, the Petitioner is required to show cause as to why he did not obey the orders of the court and not to challenge the decision of the court whether it was right or otherwise. The words "without sufficient cause" refer to whether the explanations for not carrying out the orders of the court are satisfactory or not. If they are not satisfactory, the court will hold that the person so ordered has failed to carry out the order of the court without sufficient cause. It could at that stage neither be challenged not considered whether the order passed in the proceeding u/s 488 CPC was proper or not. The proper remedy in that case is to go to the superior court. This has been so held by the Patna High Court in Robin Richard Vs. Mercy Richard, .

Therefore, it would be quite manifest reading Section 488(3) and the principles as enunciated in the aforesaid authorities that the Petitioner-husband cannot reopen this question that the order is bad because it is a composite order at the time of enforcement of the order for realisation of the arrears of maintenance. The only remedy for the husband was to challenge the original order by way of revision and which he has failed to do and the Magistrate, as already observed, had the inherent jurisdiction and he did pass the order in exercise of the jurisdiction vested in him and it is also not disputed by the Learned Counsel for the Petitioner that even the High Court can split up the composite order made by the Magistrate. However, he contends that the order splitting the award made by the High Court would be operative only from the date when the order is made by the High Court and not from the initial stage when the application was made by the wife for maintenance for herself and children. However, I am not concerned with this point at this stage because the order was not challenged at the proper stage. He has come up in revision only when his objection in execution petition was over-ruled and, in my opinion, the Magistrate could not go behind the order.

Further from the order it would appear that he has awarded only Rs. 75/- by way of maintenance to the wife as also to the two children which cannot be said to be an amount which is excessive. Law provides for maintenance at a monthly rate not exceeding Rs. 500/- on the whole, i.e. for the wife and the children. Therefore, the grievance that way could be of the wife and the children who did not get adequate amount by way of maintenance. The Petitioner who is a Government employee and is duty bound to maintain his wife and children cannot be said to be a sufferer if the composite award is for Rs. 75/- only per month for three persons.

In Chander Parkash Bodh Raj v. Smt. Shila Rani Chander Prakash (supra) where there was a composite award, the Delhi High Court distinguished the case Bai Prabhavati (supra) saying that this authority does not make it imperative for the Court to separately determine the amount of maintenance for the mother and the child nor it is necessary or possible on revision to go into the question and specify the amount of maintenance separately for the wife and her infant child. In these circumstances the learned Magistrate was perfectly justified in overruling the objection raised by the husband--Petitioner about the executability of the order of maintenance made by him on an application u/s 488 CPC filed by the wife. Hence the petition fails and is hereby rejected.