Mylaswami Pandaram vs Muthammal

(1) This is a petition filed by the husband against the order of the Additional First Class Magistrate holding that a protection order by the insolvency

Court cannot take away the powers of the magistrate for ordering the petitioner''s imprisonment u/s 488, Cri. P. C. for failure to comply with the

Court''s order.

(2) The facts of the case may be briefly stated. The respondent-wife filed a petition M. C. No. 10 of 1961 under S. 488(1), Cri P. C. on the file of

the Additional First Class Magistrate, Pollcahi. The Court granted the respondent and her children maintenance of Rs. 60 per mensem. The

respondent filed C. M. P. No. 58 of 1963 under S. 488 clause (3) for payment of Rs. 720 being the arrears of maintenance. A warrant was issued

by the Court for distress of the petitioner''s properties. Again the wife filed C. M. P. 81 of 1963 on 10-6-1963 for a warrant for arrest of the

petitioner. A non-bilabial warrant for arrest was issued by the Additional First Class Magistrate, Pollachi. While so, the petitioner moved the

insolvency Court by filing I. P. No. 10 of 1963 in the Sub Court, Coimbatore. In I. A. No. 130 of 1963, the second additional Subordinate Judge

granted an interim injunction from arrest in execution of the order in M. C. No. 10 of 1961 on the file of the Additional First Class Magistrate,

Pollachi, till the disposal of the insolvency petition. The respondent was also a party to this application.

After the passing of this order, the petition under S. 488(3) came up before the Additional First Class Magistrate. On 1-7-1963, the petitioner

appeared before the Additional First Class Magistrate, Pollachi, and filed a counter stating that he is immune from arrest by virtue of the order of

the civil Court and that he could not be committed to jail for failure to comply with the order in M. C. 10 of 1961. The learned magistrate

considered the question whether the order of the insolvency Court granting interim protection from arrest in execution of the order in M. C. 10 of

1961 was binding on him and put an end to his powers to commit the respondent to jail even if the failure to pay arrears of maintenance was

without sufficient case. The learned magistrate held that the insolvency Court by issuing an order of protection cannot take away the powers of the

magistrate for ordering imprisonment of the erring husband under S. 488(3), Cri. P. A.

(3) Mr. T. R. Ramachandran, learned counsel for the petitioner, submitted that in I. A. 130 of 1963 in I. P. 10 of 1963 the respondent was also a

party and the Subordinate Judge granted protection against payment of arrears due to the respondent in M. C. 10 of 1961 and the respondent

having been a party and not having challenged that order is forbidden form enforcing payment of arrears of maintenance through a criminal Court.

It is unnecessary for the purpose of this petition to consider whether the order granting interim protection under Ss. 5 and 23 of the Provincial

Insolvency Act is correct or not. The only question for consideration is, taking the order of the insolvency Court as valid, whether the criminal

Court is bared form proceeding under S. 488(3), Cri. P. C.

(4) In In re, Yahia, ILR (1937) Mad 90: AIR 1936 Mad 793, Wadsworth, J. held that arrears of maintenance payable under a magisterial order

under S. 488, Cri. P. C. are a debt provable in insolvency within the purview of sub-section (3) of S. 46 of he Presidency Towns Insolvency Act

and in respect of such arrears a protection order can be given. In Muni Krishnayya v. Akulamma, ILR (1940) Mad 692: AIR 1940 Mad 697, the

petitioner who was the husband was directed to pay maintenance to his wife under S. 488 Cri. P. C. He failed to comply with the order,. The

magistrate found that the husband had done so without sufficient cause and sentenced him to suffer rigorous imprisonment. Then the petitioner filed

an insolvency petition and obtained an order for his release under S. 23(1) of the Provincial Insolvency Act, and on the strength of that order,

made an application to the Joint Magistrate for his release.

The Bench referred to the decision of the Allahabad High Court in Pt. Shyama Charan Vs. Mt. Anguri Devi , where the Court declined to accept

the contention that the mere fact that the applicant had been adjudicated as insolvent showed that he was unable to pay the maintenance of his wife

and that constituted sufficient case of non-payment, and observed that the wording of Section 488(3) shows that in every case it is the duty of the

magistrate to find out whether the person ordered to pay maintenance u/s 488 has or has not failed without sufficient cause to comply with the

order and neither the protection order nor the adjudication order could be conclusive on this point. The learned Judges further proceeded to

observe--

Prima facie, of course, it would appear to a magistrate that an order of protection or an order of adjudication would be sufficient to show that

failure to comply with an order to pay maintenance had not been without sufficient cause, but it cannot be said that the magistrate''s hands would

be tied by the order of the insolvency Court.

In Mahomed Hussain v. Emperor, AIR 1940 Bom 344, it was held that a protection order under the Insolvency Act does not protect the insolvent

against the special statutory power of committal given to a criminal Court under S. 488.

(5) Section 488(3) is in the nature of a punishment section by a magistrate for disobedience of his order. It provides that if a person ordered to pay

maintenance falls without sufficient cause to comply with the order, the magistrate may issue a warrant for levying the amount due and may

sentence such person to imprisonment. It is clear from the decision in ILR (1940) Mad 692: AIR 1940 Mad 697 that whether there is an order of

the insolvency Court or not, the Magistrate ice bound to enquire into the question whether the husband failed to pay the maintenance ordered

without sufficient cause. This implies that the magistrate is not barred from proceeding with a petition under S. 488(3) by an order of protection

given by the Insolvency Court. The view of the magistrate is therefore correct and is upheld.

(6) The petition is dismissed.

(7) Petition dismissed.