Penubala Muni Krishnayya vs Penubala Akilamma

Burn, J.—This is an application to revise the order passed by the learned Sub-Divisional Magistrate of Chandragiri on the 29th October,

1939, on an application made to him on the 28th October, 1939, on behalf of the petitioner. The petitioner is the husband of a woman named

Akkulamma in whose favour the learned Joint Magistrate passed an order in M.C. No. 104 of 1938 on the 7th February, 1939, directing this

petitioner to pay his wife Rs. 3-8-0 per mensem as maintenance u/s 488, Criminal Procedure Code. The petitioner did not pay in accordance with

that order. Before she could enforce the order, the petitioner filed a suit O.S. No. 128 of 1939 in the Court of the District Munsif of Tirupati and

obtained an interim injunction restraining his wife from enforcing the order for maintenance. The injunction was in force until 21st July, 1939. On

that date, the interim injunction was vacated and the petitioner''s wife on the 24th July, 1939, applied to the joint Magistrate to direct this petitioner

to pay Rs. 17-8-0 being the arrears for five months. The learned Joint Magistrate issued a distress warrant and as the money was not realised, he

gave notice to the petitioner who appeared before him. The Magistrate found that lie had without sufficient cause failed to pay the money due to his

wife under the maintenance order. The Magistrate, therefore, sentenced him to suffer rigorous imprisonment for one month, or until the amount of

the arrears should sooner be paid. This order was passed on the 23rd October, 1939. On the 24th October, the petitioner filed an insolvency

petition in the Court of the District Munsif and obtained from him an order for his release u/s 23(1) of the Provincial Insolvency Act. The District

Munsif communicated a copy of this order to the Joint Magistrate with a letter dated 25th October and the petitioner made an application on the

28th October for his release. The learned Joint Magistrate dismissed his application for release and this revision petition has consequently been

brought.

The contention on behalf of the petitioner is that the protection order passed by the Insolvency Court is a decision of a competent Civil Court

within the meaning of Section 489(2), Criminal Procedure Code, in consequence of which the Joint Magistrate is compelled to cancel the sentence

of imprisonment passed upon this petitioner. There is no authority for this contention. Learned Counsel for the petitioner has referred us to the

cases reported in Tokee Bibi v. Abdool Khan ILR (1879) Cal. 536 and Halfhide v. Halfhide ILR (1923)Cal. 867. But we do not think that they

have any application. In the earlier case there was no sentence of imprisonment passed at all. In the second case, the protection order had been

issued before the sentence of imprisonment was passed, and after the sentence of imprisonment was passed, an adjudication order had been

passed and the protection order, continued until discharge. Their Lordships of the Calcutta High Court said:

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 is

unable to pay his debts. There is also the order of protection. It follows, therefore, that the petitioner being unable to pay his debts, is not guilty of

wilful neglect within the meaning of Section 488, Criminal Procedure Code.

It is noticeable that there was also no finding by the Magistrate of wilful neglect in that case. The terms of Section 488(3) have since been

altered. There is no question now of ''wilful neglect.'' The section reads:

If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order...sentence

such person...to imprisonment.

This wording 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. Neither the protection order nor the adjudication order could be conclusive on this

point. The question is one of fact which the Magistrate has to decide for himself. 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. Learned Counsel for

the petitioner has referred us to the decision of Mr. Justice Wadsworth reported in Yahia In Re: S. Yahia and Amaturrub Ghousunnissa Begum

alias Amir Begum, . That has no bearing upon the point before us. The learned Judge has held that arrears of maintenance payable in respect of

magisterial order u/s 488, Criminal Procedure Code, constituted a ''debt or liability provable in insolvency'' within the meaning of Section 46(3) of

the 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 inquiry u/s 488(3), Criminal Procedure Code. The matter has been dealt with very clearly by

Mr. Justice Allsop of the Allahabad High Court in the case reported in Shyama Charan v. Anguri Devi ILR (1938) All. 486. The learned Judge

has said:

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 non-payment. 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 Code of Civil Procedure, 1908,

from liability to attachment and sale in execution of a decree. Under the provisions of Section 60, Civil Procedure Code, 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 attachment. The applicant would therefore, if

he is prepared to do work and earn a salary, be in a position to support his wife.

The learned Judge has also pointed out that:

An order passed by a Magistrate u/s 488(3), Criminal Procedure Code, for the imprisonment of a person who fails to pay a maintenance

allowance is a sentence of imprisonment.

That is the word used in the Code itself. The learned Public Prosecutor has contended with much force that the Magistrate who has passed such

a sentence has no power to cancel his own order. Learned Counsel for the petitioner has discussed the question whether a proceeding u/s 488 as

''a criminal case'' or not. But we think that that is not a relevant discussion. It appears to us that the orders referred to in Section 489(2) which the

Magistrate can cancel or vary are orders relating to the amount of maintenance payable. We do not think that it is possible for a Magistrate who

has passed a sentence of imprisonment u/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 Section 23 of the Provincial

Insolvency Act that a person who has been sentenced u/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 decisions in Mehr Khan v. Mst. Bakht Bhari I.L.R.(1928)Lah. 406, Mating Tin v. Ma Hmin ILR

(1933)Rang. 226 and Mahomed Ali Mithabhai, In re AIR 1930 Bom. 144. In the last case, it was held that a wife could make an application for

maintenance u/s 488, Criminal Procedure Code 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 an insolvency petition. Moreover even discharge of an insolvent does not

free him from liability to obey an order u/s 488, Criminal Procedure Code. Vide Section 44(1)(d) of the Provincial Insolvency Act.

For these reasons, we think that the order of the learned Magistrate is correct and this revision petition is dismissed. The petitioner must

surrender to his bail to serve out the remainder, of the period of imprisonment to which he has been sentenced.