Solai Gounder vs Perumayee

Paul, J.—In this Revision case the petitioner who has been ordered to pay maintenance at the rate of Rs. 35/- per mensem to his wife, the

Respondent, and her minor son as per the order passed by the learned Sub-Divisional Magistrate of Sankari in M.C. No. 151 of 1968 challenges

the order of that learned Magistrate, sentencing him to undergo S.I. for one year for non-payment of the arrears of maintenance amounting to Rs.

1,860/-

His grievances are : (1) that the learned Magistrate should have found that the respondent was not entitled to claim arrears of maintenance for a

period of 4 years and 9 months, but could only claim one year''s arrears of maintenance; (2) that the learned Magistrate did not consider his

objection that, since, after the passing of the order directing him to pay maintenance to his wife, the respondent has been living in adultery she was

not entitled to enforce the order for maintenance passed in her favour; (3) that the learned Magistrate erred in sentencing him to imprisonment

without first issuing a distress warrant for realisation of the arrears by attachment and sale of his properties, and (4) that the lower Court erred in

issuing a warrant for his arrest without issuing a notice to him.

With regard to the first contention, the learned counsel for the petitioner submitted that he was not pressing that objection, for, actually even

though in M.C. No. 151/68 an order was passed directing the petitioner to pay maintenance to his wife, the respondent, and her minor son, at RS.

35/-per mensem from 28th December, 1968, she could not collect the maintenance so awarded since the petitioner filed Crl. M.P. No. 1970 of

1969 and Crl. R.C. No. S.R. No. 32160, dt. 25th August, 1969 and obtained an order which prevented her from collecting the maintenance and

when on 7th August, 1972 she filed a petition for recovery of the arrears of maintenance, the petitioner filed a suit O.S. No. 1057 of 1971 for a

declaration that, she the respondent, had never married him and that the minor was not a child born to her by him, the petitioner, and obtained an

ex parte decree. Since it was entirely due to the fact that the petitioner instituted various proceedings which effectively prevented her from realizing

the maintenance awarded to her and arrears of maintenance for 4 years and 9 months have accrued, the petitioner cannot validly contend that in

spite of those factors the respondent cannot claim arrears of maintenance for more than a year prior to the filing of her application for enforcement

of the order for maintenance.

The second proviso to Sub-s. (3) of S. 488, Crl. P.C. states:

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.

Applications had been previously filed by the respondent for recovery of maintenance awarded to her, but by reason of the pendency of the

various proceedings referred to above, the arrears could not be collected. Eventually when all the legal hurdles which prevented her from realizing

the maintenance awarded to her had been cleared, she came forward with the application for realisation of the arrears which had accrued. It was

only on the date when those| legal hurdles were removed that the amount could be said to have become due and within one year thereof she has

filed her application for realisation of the arrears. Therefore, the first contention of the petitioner is untenable and rightly his learned counsel did not

press the same.

With regard to the second objection the petitioner in the objection petition filed by him has stated that from about 1 1/2 years prior to the filing

of his objection (which was filed on 14th November, 1973) his wife, the respondent has been living in adultery openly with one Mottayan of

Mettupalayam and it is that Mottayan who is financing her for the litigation and is maintaining her. Sub-S.(4) of S. 488 says that 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. The learned Magistrate did not consider this objection at all. When the

execution of a maintenance order is applied for and the counter-petitioner contends that the order should not be executed and sets out certain

grounds in support of his contention, the court is bound to consider the sufficiency of the cause alleged by the counter-petitioner and refuse

execution if the Court should be satisfied that the cause is sufficient and to grant execution if the court is not so satisfied; Vide: Teetharappa Pillai

Vs. Meenakshi Ammal, . Under Sub-s. (4), of S. 488, Crl. P.C. the Magistrate is entitled to refuse to enforce the maintenance order on a finding

that during the period in respect of which maintenance was sought to be recovered the applicant was living in adultery. Unchastity on the part of the

wife subsequent to award of maintenance can be a good ground for refusal of husband to comply with the order.

In Kalyani Debi Vs. Nirmal Kumar Panda, it was held that where a husband against whom an order for maintenance of his wife has been

passed, objects to the claim for arrears on the ground that the wife was living a life of adultery and as such she was not entitled to recover any

maintenance, the magistrate is bound to take evidence on the question whether the wife has been living in adultery since the date of the

Magistrate''s order of maintenance. If his finding is that the wife has been living in adultery since, he will cancel the order and reject the wife''s

application for recovery of arrears of maintenance. If, on the other hand, he finds that question in the negative, he will reject the husband''s

application for cancellation of the order of maintenance and proceed under Sub-s. (3) of S. 488, Crl. P.C. for the recovery of the arrears of

maintenance. It was also held in that decision that where it has already been decided upon that the wife was not living in adultery upto a particular

date and when the decision has not been set aside by a superior court, it is not open on general principles for another or the same Magistrate to go

into the same question over again.

No doubt, the petitioner had contested originally the petition for maintenance filed by the respondent against him by alleging that the respondent

was not entitled to maintenance since she was living in adultery and that contention was negative; but since in the objection petition which he has

now filed in these proceedings in which the respondent is seeking to enforce the order of maintenance passed in her favour he has categorically

stated that from about 1 1/2 years prior to the filing of the objection petition (i.e., subsequent to the order of maintenance passed in her favour), the

respondent has been living in adultery, the earlier decision cannot be canvassed by the respondent for persuading the Court not to go into that

objection raised by the petitioner.

In Kamala Sundari Dassi Vs. Nilmony Das, it has been observed as follows :-

Sub-s. (3) of S. 488, Crl. P. C. ''provides that if a person ordered to pay maintenance under Sub-s. (1) of S. 488 fails without sufficient cause to

comply with the order the Magistrate may issue a warrant for levying the amount due in the manner provided for realisation of fines. It is therefore,

clear that before a Magistrate can make an order for the issue I of a distress warrant, the Magistrate must be satins- : fled that the husband has

failed without sufficient cause to comply with the order for maintenance. In refusing to hold an enquiry upon the objection filed by the husband, the

Magistrate acted in violation of the clear provisions of Sub-s. (3) of S. 488, Crl. P. C. The failure of the husband to obtain a cancellation. of the

order for maintenance under Sub-s. (5) of S. 488 does not stand in the way of his filing an objection under Sub-s.(3) of section 488. If as a matter

of fact, the husband is able to prove the allegations which he has made in his objection, the Magistrate will not only refuse to issue a distress

warrant under Sub-s. (3) of S. 488, but he should also Cancel the order for maintenance under Sub-s.(5). It is quite clear from the words used by

the legislature in Sub-s.(3) that the Magistrate must hold an enquiry as to the sufficiency of the cause shown by the husband and he cannot order

the issue of a distress warrant without satisfying himself as to the sufficiency of the cause shown.

In Rukmani Bai v. Surajbhan Singh 1963 1 A.W.R. 350 a petition for maintenance was ordered by the court negativing the plea of the husband

that the wife was living in adultery and subsequent to the order the husband made some payments and thereafter failed to comply with the order.

But, when the wife sought to enforce the order under S. 488 (3), Crl. P. C. the husband again came out with the plea of adultery; and it was held

that the unchastity on the part of the wife subsequent to the award of maintenance can be a good ground for refusal of the husband to comply with

the order ; but such a plea could not be availed of if the allegation as to unchastity had been made and negatived in the earlier proceedings, but

when the husband came forward with the allegation that subsequent to the passing of the order the wife had committed adulterous acts and was

living an unchaste life, the same could be enquired into; and Sub-s.(5) of S. 488 envisages such a condition and it does not impose a liability on the

husband to file a separate petition and seek the cancellation of the order and such an objection could be pleaded at the time when the wife was

trying to seek the enforcement of the order.

In the case now before me, the definite allegation made by the petitioner in his objection petition is that since the date of the order for

maintenance, that is, from about the middle of the year 1972, the respondent has been living in adultery. In those circumstances, the Magistrate

was bound to enquire into that objection and if he found against the petitioner in regard to that objection then he could proceed to enforce the

order for maintenance. But, if on the other hand, he found in favour of the petitioner on that question he should refuse to enforce the order for

maintenance. Since the Magistrate has not gone into that objection of the petitioner the order of the learned Magistrate has to be set aside and the

matter remanded back to the Magistrate for going into that objection and then proceeding to deal with the matter according to law.

The third and fourth objections raised by the petitioner have also to be upheld. As I have already pointed out, under S. 488(3), only if the

person so ordered to pay maintenance fails without sufficient cause to comply with the order, the Magistrate may issue a warrant for levying the

amount due in the manner therein before 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 wording of this sub-section clearly indicates that an opportunity should be given to the person who has been ordered to pay

maintenance to show that he had sufficient cause for failing to comply with the order for maintenance. Further, the provision in the Proviso to Sub-

s.(3) that the Magistrate may issue a warrant notwithstanding the husband''s offer to maintain his wife contemplates that the offer has been made

before the issue of warrant; and the surest way of ensuring that the husband has been afforded an opportunity of making such an offer before a

warrant is issued is by issuing a notice to him to show cause why a warrant should not be issued. The provision in Sub-s.(6) of S. 488 also

indicates that a notice should be given to the husband and an enquiry should be made in his presence before issuing a warrant. The Magistrate must

have evidence to satisfy himself that a warrant should be issued. An order passed by a Magistrate without issuing a notice and holding an enquiry is

illegal (vide : Padmavati Bai v. Rohan Rao 1962 M.L.J. Cri. 510. The reason is that if such notice is issued, it would be open to the husband to

establish sufficient cause for non-compliance, in which event it would not be permissible for the Magistrate to issue a warrant for levying the

amount.

In this case, immediately on the presentation of the application of the respondent for enforcement of the order for maintenance, the learned

Magistrate ordered the issue of nonmalleable warrant for the apprehension of the petitioner without issuing any notice and in execution of that

warrant the petitioner was arrested and brought before the court and then he filed the objection petition. But then, in as much as the petitioner has

filed an objection petition and I have already decided to remand the matter back to the learned Sub-Divisional Magistrate for the purpose of

enquiring into the question whether the respondent has become disentitled to receive maintenance from her husband by reason of adultery after the

date of the order for maintenance, this failure of the Magistrate to issue a notice to the petitioner before ordering the issue of a non-bailable warrant

for his arrest would not in any way affect the matter.

Then again S. 483 (3), Crl. P.C. says that if any person so ordered to pay maintenance fails without sufficient cause to comply with the order,

the Magistrate may issue a warrant for levying the amount due in the manner provided for levying of fines and may sentence such a person for the

whole or any part each month''s allowance remaining unpaid after the execution of the warrant to imprisonment for a term............The wording of

the subsection clearly shows that the Magistrate, on finding that the person ordered to pay maintenance has failed without sufficient cause to

comply with the order should issue a warrant for levying the amount due in the manner prescribed for laying of fines, and only if the amount is not

realized by such attachment and sale of his movables, the Magistrate is entitled to sentence the petitioner to imprisonment for each month''s

allowance which remained unpaid after the execution of the warrant. The wording of the sub-section clearly prohibits the simultaneous issue of a

distress warrant and a warrant for the arrest of the husband committing default and it has been so held in a number of decisions. Where the person

ordered to pay maintenance has failed or has refused to pay it, the Magistrate cannot straightway order him to be committed to jail the first thing

that must be done is to issue a distress warrant and it is only for the whole or part of each month''s allowance that remains unpaid after the

execution of the warrant that imprisonment may be awarded (Vide: Marng Tunzon v. Ma Myaing AIR 1641 Rang. 241).

In Rangaiah v. Rukmani Bai and Another 1972 M.L.J. Cri. 360 it has been held that the words ''for whole of or any part of each month''s

allowance remaining unpaid after execution of the warrant'' in S. 488(3) will have no meaning, if it was the intention of the Legislature that even

without recourse to a warrant of attachment, a warrant of imprisonment can bordered. What is Contemplated is that in the first instance a warrant

of attachment, of the property to satisfy the demand of arrears should issue and only if the whole or any part of it remains unpaid after execution of

the warrant, imprisonment can be ordered, and the issue of a warrant of attachment and sale is a condition precedent to the issue of a warrant for

imprisonment and issuing a warrant for arrest without first having recourse to attachment and sale of the property of the respondent is illegal.

To the same purport is the decision in Jagannath Patra Vs. Purnamashi Saraf and Another, in which it was held that the order of the learned

Magistrate issuing simultaneously warrant of attachment and body warrant is not in accordance with law,

Therefore, the order of the learned Sub-Divisional Magistrate in this case directing the issue of a non-bailable warrant for arresting the

petitioner without first issuing warrant for realisation of the arrears and his order sentencing the petitioner to imprisonment are clearly illegal and are

set aside and the Magistrate will, after enquiring to the objection raised by the petitioner to the enforcement of the order for maintenance on the

ground that since the date of that order his wife, the respondent, has been living in adultery, follow the correct procedure indicated above in

disposing of the petition. The matter is therefore, remanded back to the learned Sub-Divisional Magistrate for disposal according to law and in the

light of the observations made by me above.