Nileshkumar Rameshchandra Dhruv vs State of Gujarat

J.U. Mehta, J.—Rule Mr. S.T. Mehta, Additional Public Prosecutor appears and waives service of rule for the State.

The petitioner who is the original opponent in Miscellaneous Criminal Application No. 132 of 1988 has approached this Court challenging the order dated 26-9-1988 passed by the learned Chief Judicial Magistrate, Amreli, who issued a warrant against the present petitioner to recover the amount of maintenance of Rs. 7,500/- by attaching the movable property and if the said amount could not be recovered, from that, then he ordered to arrest the present petitioner and to produre him before the Court.

Notice was issued to respondent No. 1 who is the wife and also to the State. Respondent No. 1 remained present in person before this Court and Mr. S.T. Mehta, learned Additional Public Prosecutor for the State waived service of notice on behalf of the State. Respondent No. 1 submitted that she has nothing to say in the matter. In view of the said statement made by respondent No. 1, the Learned Counsel for the petitioner sought permission to delete her name as respondent No. 1. Permission was granted. In these circumstances, the Learned Counsel for the petitioner and the learned Additional Public Prosecutor for the State are heard.

The learned Counsel for the petitioner submits that looking to the provisions of Section 125 of the Criminal Procedure Code and particularly, Sub-section (3) of Section 125, before issuing a warrant for levying the amount due, the learned Magistrate ought to have beard the petitioner and in the present case, admittedly the petitioner is not heard before issuing the warrant and, therefore, the order is bad. That learned Counsel for the petitioner also drew my attention to the judgment of this Court in the case of Natverlal Rasiklal Vyas v. Manjulaben, daughter of Harishanker Lallubhai and Anr., Criminal Revision Application No. 246 of 1974 decided on 6-7-1974. This High Court interpreted the provisions of Section 488(3) of the Criminal Procedure Code, 1898 (old) which also dealt with an enforcement order. It is, laid down by this High Court in the said case that Sub-section (3) deals with the enforcement of the order already passed by the Court regarding maintenance on satisfaction of the conditions mentioned in Section 488(1) of the Criminal, Procedure Code. When such an order is sought to be enforced, person who is so ordered has to be given an opportunity to show that he had failed to comply with the order on account of sufficient cause and if he is able to show such sufficient cause for his failure to comply with the order, the Court can refuse to enforce the order. I am in respectful -agreement with the aforesaid principle laid down by this High Court in the said Criminal Revision Application.

In my opinion, there is much force in the contention raised by the learned Counsel for the petitioner Sub-section (3) of Section 125 of the Criminal Procedure Code, 1973 reads as under :--

"(3) 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 the manner 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 or until payment if sooner made :

Provided that no warrant shall be issued for the recovery of any amount due under this Section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due :

Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this Section not withstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation : If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife''s refusal to live with him.

Therefore, when a person who is ordered to pay the maintenance fails without sufficient cause to comply with (hat order, such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner 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 or until payment if sooner made. The phraseology used in Sub-section (3) shows that before the issuance of the warrant on the application made by the wife for non-compliance of the order, the Learned Magistrate must give an opportunity to the husband to show that there was sufficient cause for non-compliance of the order. If the Court comes to the conclusion, after hearing the husband against whom the order was passed, that there was no sufficient cause for non-compliance of the order, then a warrant can be issued by the court. The learned Magistrate has to properly bear in mind the provisions of Section 125(3), Criminal Procedure Code, 1973, which deal with an enforcement, order. That Sub-section deals with the enforcement of the order already passed by the Court regarding maintenance on satisfaction of the conditions mentioned in Section 125(1) of the Criminal Procedure Code. When such an order is sought to be enforced, persons who are so ordered have been given opportunity by the Legislature to show that they had failed to comply with the order on account of sufficient cause. If they are able to show such sufficient cause, for their failure to comply with the order, the Court can refuse to enforce the order.

Now, the second proviso to Sub-section (3) of Section 125, Criminal Procedure Code, 1973 reads as under :

"Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this Section not withstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation : If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife''s refusal to live with him."

It is thus evident that if such offer is made to maintain a wife by the husband on condition of her living with him and the wife refused to live with him, the Magistrate has to consider grounds of refusal stated by her. If the Court is satisfied that there is just ground for so doing, the Court may, in spite of such offer made by the husband, make an order regarding enforcement. It is, therefore, evident that the Magistrate has got to make an inquiry when such offer is made. No doubt, it will be for the husband to show that there was sufficient cause for non-compliance with the order. The burden will lie on the husband to prove sufficient cause. Thus, the Magistrate must hold an inquiry as to sufficiency of the cause shown by the husband and he cannot order the issue of a distress warrant without satisfying himself as the sufficiency of the cause shown

In the present case, it is an admitted fact that before the issuance of the warrant against the present petitioner on the application made by the wife on 26-9-1988, the petitioner was not heard and the warrant was issued on the same day, i.e. 26-9-1988 on the application of the wife. In these circumstances, the order dated 26-9-1988 passed by the learned Chief Judicial Magistrate, Amreli deserves to be quashed and set aside.

The learned Advocate appearing for the petitioner submits that his client has already paid the amount and that his client is not going to ask for the amount which he has already paid.

In the result, this Miscellaneous Criminal Application is allowed and the order dated 26-9-1988 passed by the learned Chief Judicial Magistrate, Amreli is quashed and set aside. However, no order of refund of the amount paid by the petitioner is made in view of the statement to the aforesaid effect, made on behalf of the petitioner. Rule is made absolute accordingly.