M. Sore vs Taiyainayaki

Ratnavel Pandian, J.—This case raises a very important and interesting question of law as to whether a person can claim protection against an order of imprisonment passed by a Criminal Court under S. 125 (3) of the Code Criminal Procedure, for non-payment of arrears of maintenance, on the ground that he has been adjudged an Insolvent in an Insolvency Court.

The brief facts of the case are as follows: The respondent herein filed a petition, under S. 125 of the Criminal Procedure Code against her husband (petitioner herein) in M C, 2699 of 1974 before the III Metropolitan Magistrate, Madras, seeking an order of maintenance for herself and for her minor child on the ground that she is legally wedded wife of the petitioner who is a driver in the State Transport Service drawing a monthly salary of Rs. 400/- odd and the child was born of the wedlock, and that the petitioner had ill-treated her and neglected to maintain herself and the child. She has also alleged that the petitioner is keeping a concubine by name Yasammal. The petitioner herein remained absent in the proceedings in spite of repeated notices and allowed the same to proceed ex-prate. Hence, on 25th March, 1975, the learned Magistrate examined the respondent herein as P. W. 1 and ordered maintenance to be paid by the petitioner at the rate of Rs. 35/- per mensem for the respondent and at Rs. 20/- per mensem for the child. Subsequently, in December, 1978, the respondent filed M. P. No. 3557 of 1978 under S. 125 (3), Crl. P. C., for necessary action on the ground that the petitioner had committed breach of the order, in that be had not paid the maintenance for a period of 11 months, which amounted to Rs. 605/- as on 1st December, 1978. The petitioner filed a counter in the above miscellaneous petition, stating that the respondent is not his wife and that the ex parte order was obtained while he was under remand in connection with a motor accident and that he has lost his job.

It is seen from the records that on a number of occasions a warrant had been issued for his arrest. In July, 1979, be paid a amount of Rs. 200/- to the respondent while he was under-going imprisonment consequent upon the breach of the order for maintenance. Subsequently, he paid a sum of Rs. 100/-. On 3rd December, 1979, a petition was filed on behalf of the petitioner herein stating that he had obtained an order of insolvency, that he is not having any source of income to pay the maintenance and that if he is released from the jail he was prepared to pay maintenance to the respondent. That petition was rejected. It Is under these circumstances, the petitioner has come forward with the present petition under S. 482, Crl. P. C, challenging the order of the Magistrate in M. P. 3557 of 1978 dated 5th November, 1979 remanding him to custody.

The only contention that has been raised before me by S.N. Amarnath, learned counsel for the petitioner, is that the petitioner has been adjudicated an insolvent on 13th October, 1979 as per order in Application No. 559/79 in I.P. No. 32 of 1979 and that the amount of the arrears of maintenance payable by him to the respondent has been shown in the schedule of debts owed by him in the insolvency application, and therefore the consequential protection given to him by the Insolvency Court against arrest would cover also the maintenance amount due by him to the [respondent and accordingly the order of arrest for non-compliance with the maintenance order is not sustainable.

In support of the above contention, the learned counsel would rely on the following decisions, viz., (1) Tokee Bibee v. Abdool Khan (1879) 5 C.L.R. 458 : (1880) ILR 5 Cal. 536, Halfhide (Mr.) Vs. Halfhide (Mrs.), and In re AIR 1936 Mad 793 S. Yahia. In Tokee Bibee''s Case the first cited case, it was held that under a protection order granted by the Insolvency Court under S. 13 of the Insolvent Act (11 & 12, Vict. c. 21), an insolvent was protected from arrest or imprisonment in respect of arrears due for '' maintenance ordered by a Presidency Magistrate under S. 234 of Act IV of 1877 when such arrears have been included in the schedule of the insolvency petition.

The facts of the Halfhide''s Case are as follows: Mrs. Half hide got an order of maintenance in her favour and subsequently, for the recovery of the arrears of maintenances: she obtained a warrant of arrest against her husband, who pleaded that be had no means whatsoever to pay maintenance to his wife and that he was also possessed with a protection order issued in his favour under the Insolvency Act. The Magistrate, who heard the case, recorded an order to the effect that under the circumstances the husband could not be arrested. The Chief Presidency Magistrate came to a contrary conclusion, holding that S. 44 of the Insolvency Act was no bar to an order under S. 488, Crl. P.C. 1898 As against the said order of the Chief Judicial Magistrate, a revision was filed before the High Court of Calcutta. A Division Beech of that High Court held, having regard to the facts of the case, as follows:

These being the facts, it is impossible for us to come to an affirmative conclusion that there was willful neglect on the part of the petitioner to pay the arrears of maintenance to his wife within the meaning of the words used in S. 488, Crl. P.C In our opinion, the fact that he has been adjudicated an insolvent Is conclusive, so long as the order, of adjudication stands, that the petitioner it unable to pay hit debts. There it already the order of protection, It follows, therefore, that the petitioner being unable to pay his debts. It not guilty of willful neglect within the meaning of S. 488, Crl. P.C.

In the third-cited case In Re: S. Yahia2 Wadsworth, J., following the decision in Tokee Bibee''s Case1 as an express authority for the view that the arrears of maintenance under a magisterial order can be a debt or liability provable is. insolvency, in respect of which a valid protection order may be issued, and some, other English decisions on the above lines, held as follows:-

Having In view the fact that the power given under S. 489, Crl P.C., to a Magistrate to very an order for maintenance does net include the power to make such variation retrospective so as to cover arrears already accrued due, it seems to me not possible to contend, on the strength of the English decisions regarding alimony; that such a debt is not a present certain debt or that such a debt does not come within the purview of Sub-s. (3), of S. 46, Presidency Towns Insolvency Act. I. therefore, hold that the learned Master was right in deciding that the arrears of maintenance are a debt provable in insolvency and in respect of which a protection ''order can be given.

The principles laid down in the above case cannot, in my view, be made applicable to the facts of the present case, for the reason that even according to the petitioner, the protection order seems to have been granted by the Insolvency Court in respect of the past arrears of maintenance mentioned in the Schedule to the Insolvency petition filed subsequent to the order of arrest passed by the Magistrate In M.P. No. 3557 of 1978, (It may be noted here that the petitioner herein has not filed before the Magistrate or before this Court the copy of the order passed by the Insolvency Court adjudicating the petitioner an insolvent-and giving him protection in respect of a specified amount representing the arrears of maintenance.

The decision that would be squarely applicable to the facts of the present case is the one rendered in Muni Krishniah v. Akilamma AIR 1940 Mad 697 : 51 L.W. 718 In that case, Akilamma, the wife, got an order of maintenance in her favour under S. 488, Crl. P.C. Her husband did not pay the maintenance in accordance with that order. Before she could enforce that order, her husband filed a suit and obtained an interim injunction restraining his wife from enforcing the order of maintenance, which injunction was vacated subsequently on an application taken out by the wife. Then, she applied. to the Joint Magistrate to direct her husband to pay Rs, 17-8-0 being the arrears of maintenance for five months. The learned Magistrate issued a distress warrant and as the money was not realized, the Magistrate, finding that the husband without sufficient cause failed to pay the money, on 23rd October, 1939 sentenced him to surfer rigorous Imprisonment for one month or until the amount of the arrears should sooner be paid. The husband filed an insolvency petition on 24th October, 1939 and obtained an order for his release under S. 23 (I) of the Provincial Insolvency Act in the Court of the District Munsif. On the strength of the above order, her husband made an application on 28th October, 1939 for his release; but the learned Magistrate dismissed that application for release. As against that order of dismissal of that application a revision was directed before the High Court and it came before a Bench of this High Court, consisting of Burn and Lakshmana Rao, JJ. before whom a contention on behalf of the husband was raised that the protection order passed by the Insolvency Court is a decision of a competent civil Court within the meaning of S. 489 (2) of the old Code, in consequence of which the Joint Magistrate was compelled to cancel the sentence of imprisonment passed upon the husband. The learned counsel appearing for the husband placed reliance on Tokee Bibee''s Case2, and on Half tide''s Case I.L.R 5 Cal 536. The Division Bench distinguished the earlier case stating that in that case there was no sentence of imprisonment passed at all. On a perusal of the judgment in Tokee Bibee Case,9 it is seen that the Magistrate ordered the husband to deposit into Court certain amount as arrears of maintenance and in default to undergo rigorous imprisonment for a fortnight. The husband had then approached the High Court, questioning the said order. Evidently, the husband in that case did not suffer imprisonment, unlike in the case before the Division Bench, in the second case viz., Halfhide''s Case ILR 50 Cal. 867 an interim protection order had been issued. But, despite that protection order, the learned Chief Presidency Magistrate came to the conclusion that S. 44 of the Insolvency Act was not a bar to an order under S. 488 of the Crl. P.C, and accordingly gave time to the husband to pay the arrears of maintenance. The amount not having been paid, the husband was sentenced to one month''s simple imprisonment., About a month thereafter, the husband was adjudicated an insolvent and continued the protection order until his discharge. Thus, it can be seen that in spite of the protection order, the Chief Judicial Magistrate had refused to discharge him and had sentenced him to imprisonment. This was not the case in Muni Krishniah Case AIR 1940 Mad. 697. : 51 L,W. 518 It is also seen that the Bench noticed that there was no finding by the Magistrate in Halefhide''s Case I. L.R. 1952 Cal. 867 of any ''willful neglect'', as provided in S. 448 (3) of the old Code, as it then stood. But, in the case before the Bench, there was the finding that the husband had without sufficient cause failed to pay the amount. Then the Bench considered the decision in Yahia''s case AIR 1936. Mad. 793 and pointed out as follows:

The learned Judge (Wadsworth, J.) has held that arrears of maintenance payable in respect of Magisterial order under S 488, Crl. P.C. constituted a ''debt or liability'' provable in insolvency'', within the meaning of S:46 (3). Presidency Towns Insolvency Act. The learned Judge has not anywhere suggested that a protection order issued by an Insolvency Court would necessarily be conclusive for a Magistrate making an enquiry under S 488 (3), Crl. P.C.

Finally the Division Bench agreed with the observation of the Allahabad High Court in Shyama Charan v. Anguri Devi ILR 1938 All. 486. :A.I.R.1938 All. 253 which reads as follows:

It has also been urged that the mere fact that the applicant has been adjudicated an insolvent shows that he is unable to pay for the maintenance of his wife and that that constitutes sufficient cause for nonpayment. Here again, I am unable to agree. Learned counsel has suggested that the whole of the insolvent''s property vests in the receiver and there is nothing left out of which he can maintain his wife. This argument overlooks the fact that the property of the insolvent which vests in the receiver does not include any property which is exempted by the Civil Procedure Court from liability to attachment and sale in execution of a decree. Under the provisions of 8 60. CP.C., as now enacted, the salary to the extent of the first hundred rupees and one half of the remainder of such salary is exempt from such attachment. The applicant would therefore, if he is prepared to do work and earn a salary, be in a position to support his wife...an order passed by a Magistrate under S. 488 (3), Crl P.C. for the imprisonment of a person who fails to pay a maintenance allowance is a sentence of imprisonment.

The Bench, after approving the view taken by the Allahabad High Court in the matter, has given their opinion in the following words:

We do not think that it is possible for a Magistrate who has passed a sentence of imprisonment under S. 488 (3) to cancel the sentence merely because the Insolvency Court has issued an order of protection. The sentence of imprisonment is a punishment Inflicted for breach of the order. It cannot be considered. In the terms of S 23, Provincial Insolvency Act, that: a person who has been sentenced under S. 488 (3) is under ''imprisonment in execution of the decree of any Court for the payment of money''. This view derives support from the decision in Mthr Khan v. Ml. Bakat Bhari A.I.R (1929) 16 Lah. 32 : 112 I. C. 218 : 29 Cri. L J. 1002 : 10 Lah 406 : 30 P.L.R. 409, Mating Tin v. Mr. Hmim AIR (1933) 20 Rang. 138: 1931 Crl. C. 728. 1141.C. 187 : 34 Cri. L.J. 815 : 11 Rang. 226 (F.B), and Krishnarao Raghunath Yardi Vs. Ghamon Ghama Valad Chima, . In the last case it was held that a wife could make an application for maintenance under S 488, Crl. P.C. in spite of the fact that she had already obtained a decree in the civil court for maintenance, payments under which were suspended by her husband who had filed as in solvency petition. Moreover, even discharge, of an insolvent does not free him from liability to obey. an order under S. 488. Crl. P.C. vide S. 44(1)(d). Provincial Insolvency Act.

Having so observed, finally the Bench held that the order of the learned Magistrate was correct and accordingly dismissed the revision and directed the petitioner to surrender to his bail to serve out the reminder of the period of imprisonment to which he had been sentenced.

The case on hand is on all fours with the facts of the case before the Division Bench cited above, in that the petitioner herein has been sentenced to some term of imprisonment before he was adjudicated an insolvent and only when he was undergoing imprisonment, he took out an application before the Magistrate, stating that he had been adjudicated an insolvent by the Insolvency Court and hence he was entitled to be discharged as per the protection order. Thus, the order of imprisonment passed by the criminal court Was much earlier to the protection order obtained by the petitioner. Therefore, as pointed out by the Division Bench, the Magistrate cannot cancel his order sentencing-the petitioner to imprisonment. In this connection, I may add that no protection granted by the Insolvency Court can operates as a bar to a subsequent application to be filed by the wife to enforce the order for arrears of maintenance that have accrued'' during a different and later period-Vide Maung Tin v. Mahmin AIR (1933) 20 Ran 138: 1931 Cri.C. 728 : 1141. C. 187 : 34 Cri. L.J. 815 : 11 Rang. 226 (F.B) In fact, a Division Bench of the Bombay High Court in Mahemed Hussain v. The Emperor, AIR 1940 Bom. 344 following Hafiz Abdul Noor Vs. Sahu Brij Mohan Saran has held that a protection order under S. 28, Presidency Towns Insolvency Act, does not protect the insolvent from the special statutory powers of committal given to a criminal court under S 488. It would be worthwhile to note that it has been held in a number of decisions that though a husband''s insolvency is prima facie evidence of his inability to pay a maintenance debt, it is not conclusive evidence and does not release him from the liability to pay maintenance. See AIR 1935 758 (Lahore) In Kandaswami Moopan Vs. Angammal, a single Judge of this Court has stated the principle of law more clearly by expressing as follows:

therefore; our courts have gone to the extent of laying down that notwithstanding the fact that a husband may be an insolvent or a professional beggar or a minor or is a sadhu, or a monk, be must support his wife, so long as he is able-bodied and can eke out his livelihood and support his wife.

In another portion of the judgment, the learned Judge has stated that possession of property is not at all the criterion for awarding maintenance under S. 488, Crl. P.C., and that the obligation is independent of possession of property. This is in conformity with the ratio in the Allahabad decision cited above. A Division Bench of the Travancore-Cochin High Court in Narayanan v. Sarojakshi ILR 1956 T.C. 1072 has followed the decisions rendered by the Allahabad High Court in Shyama Charon v. Anguri Devi AIR 1940 Mad. 697 : 51 L.W. 718 and by this Court in Muni Krishniah v. Akiamma AIR 1940 Mad. 697 : 51 L.W. 718, and dissented from the view taken in Tokee Bibee''s case I.L.R.5 Cal. 536, and held that the Insolvency Court has no jurisdiction to pass a protection order against the sentence of imprisonment of the defaulter to pay maintenance and to direct release of the petitioner, ever though that Court is competent to entertain his insolvency petition to pass an order adjudicating him as an insolvent. The position is made clear by S. 45 (1) (d) of the Presidency Towns Insolvency Act and S. 44(l)(d) of the Provincial Insolvency Act, which show that an order of discharge shall not release an insolvent from any liability under an order of maintenance made under S. 488 of the C.P.C. See In re : Mahomed Ali.

The Mysore High Court in Hemavathiammal v. Kumaravelu AIR 1968 Mys. 111 : 1967 l Mys. L.J. 35, has differed from the view taken by the Mysore and Calcutta High Courts and has taken the view that a maintenance decree obtained by a wife against her husband is not a debt within the meaning of the Provincial Insolvency Act and the husband cannot maintain a petition for adjudication on the basis of that liability and that a decree for maintenance against the husband Is not a debt provable in insolvency. In the present case, the question as to whether the arrears of maintenance is a debt provable in insolvency or not, has not arisen and therefore, I am not expressing any opinion on this legal question.

On a careful study of the various decisions- cited above and the position of law enacted in the Presidency Towns Insolvency Act and the Provincial Insolvency Act, I hold that there is a statutory and moral obligation on the part of the husband to maintain his wife, arising from the very existence of the marital relationship between the spouses and that irrespective of whether he owns any property or not, he is bound to pay maintenance to the wife from out of the available income inclusive of his earnings that he could derive by his physical Labour, as long as he is able-bodied and can eke out his livelihood. Though an adjudication of a person as an insolvent by an insolvency court may prima facie appear to enable him to take the ground that he has no sufficient means and that he has not willfully neglected to maintain his wife, nonetheless he is subject to the jurisdiction of the criminal Court which, in its exercise of its powers under S;125 of the present Criminal Procedure Code (corresponding to S. 488 of the old Code), can direct him to pay maintenance to his wife taking into consideration his available resources, and proceed against him under S. 125 (3) for non-compliance of its order. In other words, the mere fact that a person is adjudicated as an insolvent will not absolve or relieve him from his moral obligation to maintain and protect his wife. Otherwise, it would lead to the anomalous position that an insolvent getting married or a married man becoming Insolvent would be completely absolved of his marital obligations towards his wife. If a person is sentenced to imprisonment for non-compliance with the Order of the criminal court to pay maintenance to his wife, any protection order subsequently obtained by him from the Insolvency Court, even though it may relate to the arrears of maintenance due in respect of which the criminal court had passed an order of imprisonment against him, cannot nullify the order of imprisonment already passed by the criminal court and the insolvent has to suffer the imprisonment despite the protection order.; Further, I may state that an order of discharge shall not release the insolvent from any liability tinder an order of maintenance made under S 125 of the new Code (S.488 of the old Code).

Coming to the facts of the present case, the petitioner has been sentenced to imprisonment by the criminal court for non. compliance with its order to pay maintenance to the respondent. From the available records before me, it seems that the petitioner has taken out an application before the Insolvency Court for protection and obtained an order of protection only after he was sentenced to imprisonment pursuant to his non-compliance with the order to pay maintenance to the respondent. As already stated, the petitioner has not filed any copy of the protection order alleged to have been obtained by him from the Insolvency Court. The only document which is found on the file is a petition, dt. 3rd December, 1979 wherein he has prayed that he may be released on bail Since he has obtained an order from the Insolvency Court. Therefore, the petitioner has not established his allegation that he has actually obtained an order of adjudication from the Insolvency Court. Even if he has so obtained an order of protection, that was only after he was sentenced to imprisonment by the criminal court. Hence, the order of the Magistrate sentencing the petitioner to imprisonment for non-compliance with the order to pay maintenance to the respondent is not liable to be cancelled on any ground.

In the result, the petition is dismissed I place on record my appreciation of the services rendered by Miss A.S. Bibi (sic), Advocate, appearing for the respondent at the request of the Legal Aid Society.