Ratilal Jivan vs The State of Gujarat and Another

This reference made by the learned Sessions Judge of Junagadh in respect of a proceeding falling u/s 488 (3) of the Criminal Procedure Code

1898, (hereinafter referred to as the Code) has raised a pointed question. That question is whether husband has to prove sufficient cause for not

complying with the order or monthly allowance passed under sub-section (1) of Section 488 or wife has to prove absence of sufficient cause

before the order is enforced by way of arrest and detention of husband in jail under sub-section (3). This question has arisen in the following facts

of this case: -

The wife obtained an order for monthly allowance at the rate of Rs. 30/- against the husband payable to her from 1-7-1968. Direction to pay

this monthly allowance was not complied with for a period of 12 months. Therefore, on 15-7-1969, the wife gave an application to the learned

Magistrate stating that the total arrears of monthly allowance payable to her for a period of 12 months are Rs. 300.00 P. and that this is the amount

of arrears from 1-7-1968 to 30-6-1969 and this amount was not paid by the husband. She, therefore, prayed for realisation of this amount along

with 0.65 Paise as the amount of Court-fee Stamp affixed on the application. On this application, the learned Magistrate issued notice to the

husband to show cause. The husband appeared but did not show any cause. Therefore, on 10-10-1969, the learned Magistrate passed the

following under: -

The opponent is present. He does not file any objection. He has not paid the amount and hence J. warrant be issued. 10-10-1969

It appears that the learned Sessions Judge understood the term ""J. warrant"" employed in the aforesaid order to mean jail warrant and on that basis,

he observed in the order of Reference while narrating facts as under in para 3: -

In pursuance to this notice, the applicant put in his appearance but did not file any reply, and, consequently, on 10-10-1969 the learned

Magistrate passed an order for issue of arrest warrant, as no reply was filed by the applicant and no arrears were deposited"".

Perusal of record would have shown that no warrant of arrest was issued by the learned Magistrate on 10-10-1969. What he issued was distress

warrant or warrant of attachment of moveables and that warrant is on the record at Ex. 3. That warrant was for a sum of Rs. 360/- being the

arrears of maintenance for 12 months. By J. warrant the learned Magistrate meant Jangam warrant.

In the course of attempt to execute this warrant, the police head-constable entrusted with execution thereof, made attempts to find out

properties of the husband. He found that there was no property belonging to the husband in the village. Therefore, he returned that warrant with his

endorsement, dated 11-11-1969. The learned Sessions Judge in making his order of reference has observed another fact which again does not

appear to be correct. He says in para 4.

In between the presentation of the application on 15-7-1969 and the passing of the aforesaid order on 10-10-1969 the learned Magistrate had

asked for the police inquiry to know, whether the applicant possessed adequate means and whether he, in spite of having possessed means, was

wilfully neglecting to maintain and to evade payment of maintenance"".

He has not referred to any order passed by the learned Magistrate for this inquiry. It is not possible to find from the record also that any such

inquiry was ordered between 15-7-1969 and 10-10-1969. This impression of the learned Sessions Judge was possibly created on account of the

report of the head constable below the distress warrant which contains certain facts about his having made inquiry about the property of the

husband. But then, that inquiry was in the course of execution of the Jangam warrant itself and not as per any order given to him by the learned

Magistrate.

The fact remains, however, that the distress warrant was returned unexecuted because no moveables were found which could be attached and

proceeded against. It appears that on 15-11-1969, this warrant came back to the Court unexecuted. Thereafter on 3-12-1969 the wife gave

another application Ex. 4 stating therein about the previous application and further alleging that the husband was in a position to pay arrears and

have moveable property, but he did not allow moveables to be attached and thus arrears remained unpaid. She, therefore, prayed that the husband

may be detained in prison. On this application, a second notice was issued to the husband on 3-12-1969 calling upon him to show cause why he

should not be detained in prison. He was required to attend the Court on 5-1-1970 for this purpose, and it appears from the order passed by the

learned Magistrate that on 5-1-1970, the husband appeared but did not file any objections against the application of the wife and did not show any

cause why he failed to comply with the order of maintenance. The learned Magistrate further found that the opponent is an able bodied man and

must comply with the order of Court in the absence of sufficient cause and that he has not led any evidence to show that there is sufficient cause for

non-compliance with the order. Therefore, the learned Magistrate sentenced the husband to suffer simple imprisonment for three months or till

payment of Rs. 300. 65 paise being the amount of maintenance and cost whichever event happens earlier.

The aforesaid facts clearly show that before issuing distress warrant, the learned Magistrate had given a notice to the husband and the husband

appeared pursuant to the notice but did not show any cause. Thereupon, the learned Magistrate issued distress warrant in respect of moveable

properties of the husband. This distress warrant was returned unexecuted for want or moveable property by 15-11-1969. Thereafter, the wife

gave application for detaining the husband in prison and at that stage also, the learned Magistrate was careful enough to issue another notice to the

husband to show cause why he should not be detained in prison. The husband appeared on 5-1-1970 but neither filed any objections nor showed

any cause. The learned Magistrate found that the husband was an able bodied man and he had not shown any cause why order of maintenance

was not complied with. Therefore, he sentenced the husband to imprisonment.

The learned Sessions Judge thinks that this order passed by the learned Magistrate is illegal. In making the Reference, he has observed that

before order of commitment to jail is passed, the Court has to comply with two statutory obligations namely ""(1) to issue a notice to show cause.

and (2) to hold an inquiry in presence of the husband for the purpose of determining whether the husband was wilfully avoiding the service of

warrant of attachment or wilfully neglecting to pay the amount of maintenance"". So far as first obligation is concerned, it has been complied with

inasmuch as the learned Magistrate did issue a notice to show cause why husband should not be detained in prison. The view of the learned

Sessions Judge that it is obligatory on the Magistrate to hold an inquiry for determining whether the husband was wilfully avoiding service of

warrant of attachment or wilfully neglecting to pay the amount of maintenance, does not appear to be correct. An inquiry would be necessary

where husband pleads a cause under sub-section (3) of Section 488 of the Code. In the present case, the husband appeared in response to the

notice served upon him and said nothing. He did not plead any cause. Therefore, there was no occasion for the learned Magistrate to hold an

inquiry as contemplated by the learned Sessions Judge. And this is the point which has arisen upon the Reference made by the learned Sessions

Judge and the point is whether burden is on the husband to prove sufficient cause or burden is on the wife to prove its absence before an order for

detention of husband in Jail can be made Now it would be desirable to examine this question on the terms of the provisions of Section 488 itself in

the first instance.

When the wife approaches the court u/s 488 (1) complaining of neglect or refusal by husband to maintain her, the Magistrate has to be satisfied

about his neglect or refusal and if he finds that in spite of having sufficient means, the husband neglects or refuses to maintain the wife, he can pass

an order for monthly allowance for maintenance of the wife, at the rate not exceeding Rs. 500/- in the whole. The passing of this order in favour of

the wife postulates two things (i) that the husband has sufficient means to maintain the wife and (ii) that he has neglected or refused to maintain the

wife. When such an order is not complied with and sought to be enforced under sub-section (3), the reason for not complying with the order

should be pleaded and proved by the husband. It is not possible for the wife, in the nature of thins, to conceive of all possible reasons for not

complying with the order on the part of the husband and to proceed to lead evidence to prove that these reasons do not exist in her case. The

husband would be the best person to know the reason why he has not complied with the order passed under sub-section (1) which pre-supposes

that he has sufficient means to maintain his wife. Sub-sections (3), (4) and (5) would be relevant and they are 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 manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of

each monthly 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, 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 the section notwithstanding such offer, if he is satisfied that there is

just ground for so doing.

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

with him.

Provided further, 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.

(4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient

reason, she refuses to live with her husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or without sufficient reasons she refuses

to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order"".

It appears fairly clear that in reply to a notice to show cause under sub-section (3), the husband may make an offer to maintain his wife on

condition of her living with him or may plead some cause showing his inability to comply with the order of maintenance. The plea may be that since

the order the wife is living in adultery or that he offered to keep the wife with him but she refuses to do so without sufficient reason. These may be

considered to be sufficient causes for not enforcing order. Of course, this does not mean that these would be the only sufficient causes which can

be pleaded. But the point to be emphasised is that causes contemplated by sub-sections (4) and (5) on the very terms of those sub-sections have

to be made out by the husband. Therefore, these sub-sections also give us an indication on the question posed in this case. Thus, apart from the

general principle that the husband being the best man aware of the cause for not complying with the order has to prove the same, the provisions of

sub-sections (4) and (5) also are helpful in coming to the conclusion that the husband has to plead and prove sufficient cause when order under

sub-section (1) of Section 488 of the Code is sought to be enforced against him. This would be quite natural in view of the position that at the time

of passing the order of monthly maintenance the Court has already held that the husband has sufficient means to maintain the wife and still he is

neglecting or refusing to maintain her. Sub-section (3) is not in the nature of a penal provision in which husband is in the position of an accused and

the wife in the position of prosecutor so that prosecutor has to prove absence of sufficient cause before husband is detained in prison. The object

of sub-section (3) is only one and that is enforcement of the order passed by the Court. It is for the purpose of enforcement of this order that the

husband is sentenced to imprisonment. This order of sentence is also conditioned by payment. Therefore, if payment is made before the expirty of

the term of imprisonment, the order of imprisonment does not survive with regard to the remaining term. This is clear from the words - ""Until

payment if sooner made"" - occurring in sub-section (3) of Section 488 of the Code.

The learned Sessions Judge referred to sub-section (6) observing that, that provision permits the Magistrate to record ex parte evidence only in

case where it was shown that there was wilful avoidance of service of notice or that there was wilful neglect to attend Court. In his opinion, when

the husband appeared in obeyance to this show cause notice, it was the duty of the Court to record evidence which the wife wanted to adduce in

the presence of the applicant that is the husband and to allow her husband to cross-examine the witnesses against him and to afford him an

opportunity of being heard. The learned Sessions Judge observed that the learned Magistrate has not recorded such evidence in the presence of

the husband. On the contrary he, says the learned Sessions Judge, ""before the receipt of the police report asked by him, straightway passed the

order for issue of a jail warrant merely out of the consideration that the applicant had not filed and reply to the show cause notice and had not paid

the maintenance"". As observed earlier, there was some wrong impression in the mind of the learned Sessions Judge that the learned Magistrate had

called for police report between 15-7-1969 and 10-10-1969. There is nothing in the record of the case to show this. This roznama of the case

before the learned Magistrate also does not show that any such report was called for from the police by the learned Magistrate. In this case, it

could not be said that the proceedings were exparte. The husband did appear in response to the notice served upon him to show cause why he

should not be detained in prison. He did not show any cause. Therefore, there was no question of recording evidence under sub-section (6). If he

had pleaded any cause, then certainly, it was the duty of the learned Magistrate to inquire into that cause and find out whether the cause pleaded

was proved and if proved, whether it was sufficient. Therefore, the observations of the learned Sessions Judge with regard to recording of

evidence which the wife wanted to adduce and cross-examination of the wife are not applicable to the present case. If the husband failed to plead

a cause no question of making an inquiry into that cause arises. Under these circumstances if the learned Magistrate sentenced the husband on the

ground that he was an able bodied man that he was bound to comply with the order of the Court in the absence of sufficient cause and that he has

not led any evidence to show that there was any sufficient cause for non-compliance with the order, that order for detaining the husband in jail

cannot be said to be illegal.

We may now go to two or three cases which have been referred to at the bar. The first is Laxmi Narain Vs. State, . In that case, the wife

obtained order for maintenance and applied for enforcement of the order alleging non-payment of any allowance. The learned Magistrate ordered

process to be issued without issuing any notice to the husband before ordering that process. Thus the husband had no opportunity to plead any

cause. In these facts, following observations are made by Desai, J., in delivering the judgment: -

It must be proved that the husband was ordered to pay the maintenance allowance, that he failed to comply with the order and that his failure was

without sufficient cause, the wife must adduce evidence to prove these facts and since the evidence must be taken in the presence of the husband it

necessarily follows that a notice should be given to him and that the enquiry should be made in his presence, unless he refuses or fails to be

present"".

These observations no doubt represent the view that it is for the wife to plead absence of sufficient cause. With respect, however, it is not possible

to agree with these observations for the reasons given earlier in coming to the conclusion that it is for the husband to plead and prove a sufficient

cause. There is no discussion in the judgment of the Allahabad High Court, for coming to the conclusion that the wife has to prove absence of

sufficient cause. Another decision is reported as Moddari Bin Vs. Sukdeo Bin, . The facts of that case are that the wife applied for enforcement of

the order complaining that the total amount of Rupees 450/- was due under the maintenance order and was not paid. She, therefore, prayed for

warrant against the husband and the learned Magistrate issued distress warrant for Rs. 432. 50 paise. That distress warrant could not be

successfully executed for about three months; nothing was paid in the meanwhile also by the husband. Thereafter, distress warrant was returned

with the report that the husband had no fixed place of residence, and the warrant could not be executed. Thereupon, the learned Magistrate issued

a warrant of arrest without bail against the husband. When the husband was produced under the warrant before the Court, the learned Magistrate

made an order of imprisonment which was challenged before the High Court. It was held that the circumstances that the husband did not pay any

amount, that the distress warrant could not be executed and that the husband did not take any step u/s 489 of the Code to make any alteration in

the order of allowance or to cancel the order under sub-sections (4) and (5) of Section 488, constituted sufficient material before the Magistrate to

come to the conclusion that the husband had sufficient means to pay and he was wilfully avoiding to carry out the order of maintenance and there

was no excuse for not making payment. This case also does not deal directly with the question of burden of proof and will not be helpful. There are

some observations in Patel Mulchand Joitaram v. Bai Amthi, (1968) 9 Guj LR 878 at p. 882 which are in accord with the view taken by me that

the burden is on the husband to prove and plead sufficient cause when the order of maintenance is sought to be enforced against him. My brother

Shelat, J., speaking for the Division Bench, after referring to provisions of Section 488 observed at page 822 as under: -

Apart from that, sub-section (3) of Section 488 of the Code relates to the enforcement of an order and as provided therein, the Magistrate may, if

any person so ordered fails without sufficient cause to comply with the order, issue a warrant for every breach of the order...........In other words,

the order would be enforced by a Magistrate against a person provided he fails to comply with the order without sufficient cause. The party

affected therefore gets the opportunity of meeting the order sought to be enforced against him under sub-section (3) and if he shows sufficient

cause why the order should not be enforced against him, the Magistrate has wide discretion not to enforce, that order"".

In the present case, the husband having failed to plead any cause, the order passed by the learned Magistrate is correct.

Looking to the question of construction of sub-section (3) of Section 488 of the Code involved in this case and looking to the fact that husband

and wife were unrepresented in this case, I requested Mr. D. C. Trivedi to appear amicus curiae and make submissions. Accordingly, he appeared

and made his submission. He was also of the view that under sub-section (3), husband has to plead and prove a sufficient cause. I place on record

my appreciation of the services rendered by Mr. Trivedi.

No order is made on this Reference.

Answered accordingly.