12/20/2017 CaseMine Judgement

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Rangaiah v. Rukmini Bai

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JUDGES

Mr. Justice A.D.V. Reddy

ADVOCATES

V.Harisesh Reddy

S.B.Dixit

B.Maniklal Waghrav

(1) In this reference made bv the chief city magistrate, hyderabad under section 438 cr.
P. C. Several contentions regarding the enforcibility of an order of maintenance passed
under section 488 cr. P. C. Have been raised. M. C. No. 12/66 on the file of the iii city
magistrate, hyderabad was a petition filed on 5 - 5 - 1966 by the wife on her behalf and
on behalf of her minor daughter claiming maintenance from her husband under section
488 (1) cr. P. C. An order was passed on 30 - 11 - 1968 directing the respondent
husband to pay a sum of rs. 20/ - to the wife and rs. 10/ - to the daughter per month
towards their maintenance from the date of the petition. On 20 - 2 - 1969 a petition
under section 485 (3) was filed for the recovery of arrears from the date of petition 5 - 5
- 66 upto 5 - 3 - 69 by issue of an arrest warrant, as no amount was paid since the date
of the order. A counter was filed by the husband contending that arrears for a period of
more than one year are not recoverable as the rest of the claim is barred by limitation,
that the magistrate has no jurisdiction to issue a warrant of arrest for the recovery of an
amount, without an application for recovery, that the petitioners are earning their
livelihood that the 2nd petitioner has also attained her puberty, that therefore they are
not entitled to claim maintenance, that he is also prepared to maintain them if they
come and live with him and a fresh enquiry may be held regarding these objections
before the enforcement of the order of maintenance. All these objections were over -
ruled by the magistrate and the petition was allowed and an arrest warrant was
directed to be issued.

(2) On a petition to revise that order being filed before the chief city magistrate, he
upheld the order of the lower court, except with regard to the offer made by the

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respondent to maintain his wife and daughter if they come and live with him. He held
that the order of the magistrate issuing a warrant after refusing to enquire into the
matter whether the offer made is bonafide or not, is illegal and has recommended to
this court that the order of the magistrate be quashed and he may be directed to
enquire into the question and dispose of the petition according to law.

(3) In this reference, both the counsel for the petitioners and the respondent have
again urged all the contentions raised before the chief city magistrate. The first
contention of the respondent husband is that the petitioners are not entitled to claim
arrears of maintenance for more than one year, as the rest of the claim is barred by
limitation. This contention is not correct. The second proviso to section 488 (3) cr. P. C.
Stipulates that no warrant shall be issued for the recovery of any amount due unless
an application be made to the court to levy such amount within a period of one year
from the date on which it became due. The limitation of one year prescribed is in
relation to the date on which the amount falls due. Under section 488 (2) cr. P. C. Any
amount directed to be paid by the magistrate may be made payable either from the
date of the order or from the date of the application for maintenance. The option is
therefore left to the enquiring court as to from which of the two dates the maintenance
should be directed to be paid. In this case, the order was that the maintenance fixed
should be payable from the date of application, i. E 5 - 5 - 66. As the final order was
passed on 30 - 11 - 1968, arrears from 5 - 5 - 66 to 30 - 11 - 1468 became due only on
the date of the order. Any petition for recovery of the amount can be filed within one
year from the date of the order on which date the arrears became due. As the petition
for recovery has been filed on 20 - 2 - 1969 after a lapse of only 82 days from the date
of the order it is very much within the period of limitation prescribed.

(4) If it is only the arrears of 12 months that a person can claim at any time, the
provisions of section 488 (2) cr. P. C. Will become meaningless, as if the final order
is to be passed after the enquiry that has been pending for two or more years, a
direction to pay the amount from the date of the application will be ineffective.
Therefore, this contention has rightly been overruled by both the courts below. The
petitioner have only claimed arrears upto the date of the order and a period of three
months thereafter, i. E. Upto 5 - 3 - 1969. The entire claim is therefore within time.

(5) The next contention of the respondent is that his wife and daughter are now able to
maintain themselves by their earnings, that the daughter also had attained her puberty
and therefore they are not entitled to be paid any maintenance. The contention that
while fixing the maintenance, the lower court had gone into the question of the capacity
of the parties to maintain themselves and therefore it cannot be gone into again, is not
correct. Section 488 (3) says that if any person fails without sufficient cause to comply
with the order of maintenance a warrant etc,, may be issued. The term 'sufficient

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cause' indicates that it is open to the respondent who had been directed to pay the
maintenance to show that the petitioners are not entitled to further payment of
maintenance or to any part of the arrears by reason of certain altered circumstances.
The instances of such altered circumstances may be the increase in income of the
parties which enables them to maintain themselves or adultery and other disabilities
disentitling the wife or making her liable to forfeit the maintenance ordered. Therefore it
is incumbent on the court to make an enquiry into the allegations even under section
488 sub - section (3). No doubt it was open to the respondent to file a petition for the
cancellation of the maintenance ordered under section 488 (5) but absence of such a
petition does not deprive him of the right to set up the plea order section 488 (3) cr. P.
C (v ide kamala sundari dassi v nilmony das and hari narayna v. Kani devi. The court is
bound to enquire into the allegation and if sufficient cause is shown and if the allegat
ions and re established, alter or ca ncel the maintenance ordered. In this case,
according to the respondent, his wife and daughter were able to maintain themselves
that is an allegation that was enquired into in the petition itself which was ordered only
about 3 months prior to the filing of this petition for enforcement of the order. It is very
unlikely that any thihg could have happened enabling them to earn more or be in a
better position to maintain themselves. In any case, the respondent is liable to pay the
arrears of maintenance amount until the date of the order as the order was passed
after enquiring into those allegations. And as there was no likelihood of any change in
the earning capacity within three months thereafter, he is liable to pay the entire
arrears claimed.

(6) The next contention is that the daughter has matured and therefore she is not
entitled to any maintenance, as pointed out in nanak chand v. Chandra kishore the
word 'child' is not denned in the criminal procedure code itself. It has different
meanings in different contexts. Where the word 'child is used in conjunction with
parentage, it is not concerned with age. It is not used to indicate an infant as opposed
to an adult. In the present context it only means an offspring. An offspring, whether
male or female does not cease to be the child of the parents whether he or she is a
minor or a major. Therefore, as long as the offspring is unable to maintain itself, a duty
is cast on the parent, i e. Father, to maintain it. A married daughter still remains the
child of her father. Even if she is married her married status does not ipso facto make
her forfeit her right to maintenance from her father. It is her financial status that counts
and if her husband is unable to maintain her and she is otherwise unable to maintain
herself the father will be still liable. Therefore, there is no force in the contention of the
respondent that as his daughter has matured, his liability has ceased and she is not
entitled to the maintenance. The entire maintenance amount, claimed as arrears, is
therefore payable.

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(7) The next point urged is that without issuing a warrant for realising the arrears, the
respondent cannot be sentenced to any term of imprisonment. Under the second
proviso to section 488 (3) for every breach of the order, the magistrate can issue a
warrant for levying the amount due in the manner hereinfore provided for in levying
fines and may sentence such person for the whole or part of each month's allowance
that regains unpaid. In jagannath. Purnamshi it was held that as under section 488 (3)
it is apparent that in the first instance warrant of attachment of movable and immovable
properties should be issued, that the properties should be sold in discharge of the
arrears due and on such steps being taken if the arrears amount still remains unpaid, it
is open to the magistrate to issue a body warrant and not until then and therefore the
issue simultaneously of warrant of attachment and body warrant is not in accordance
with law. But in anatna v. Lakshmi, following certain remarks made in k. R. Chaw da at
state of bombay it was held that reading sub - section (3) of section 488 cr. P. C. As a
whole it cannot be said that the power to pass an order of sentence can be exercised
only if the warrant of attachment and sale of movables proves abortive, that the two
powers are independent and the respondent can be sentenced for non - payment
without issuing a warrant of attachment. It was however pointed out that in that case no
difficulty would arise even otherwise as the husband had no mova, ble property which
can be attached for enforcing the order of maintenance. In the full bench decision that
was followed, the question for consideration was whether a warrant of arrest for more
than one month could be issued for the recovery of arrears of maintenance the
question whether it could be issued without having recourse to the provision of having
the property attached and money realised was not directly in issue. Section 488 (3)
provides for sentencing a person "for the wole of or any part of each month's allowance
remaining unpaid after execution of the warrant. ''these words willhave no meaning if it
was the intention of the legislature that even without recourse to a warrant of
attachment, a warrant of imprisonment can be ordered. 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. Therefore, the issue of a
warrant of attachment and sale is a condition precedent to the issue of a warrant for
imprisonment. The warrant for arrest directed to be issued without first having recourse
to attachment and sale of the property of the respondent is illegal.

(8) The next contention raised in this case is that no more than a month's sentence can
be imposed in enforcing the order of maintenance, whatever the arrears may be.
Following the ruling in allapichai ravuthar v. Mohidin bibu in emperor v. Beni it was
held that the section does not enjoin that there should be a separate warrant in respect
of each term of imprisonment for one month, and that where arrears have been
allowed to accumulate, the court can issue one warrant and impose a cumulative

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sentence of imprisonment. In k r chawda v. State of bombay cited above, it was held

that when the magistrate ordered imprisonment for 15 days with regard to each
month's arrears for four months, he had jurisdiction to pass such an order. Therefore
the contention that whatever the arrears the maximum period of imprisonment that can
be ordered is only one month is not tenable.

(9) The next point urged is that the magistrate was wrong in holding that as the
respondent's offer of his willingness to take back his wife and daughter and maintain
them, provided they are willing to live with him, had been considered and rejected by
the magistrate while passing the original order under section 488 (1) cr. P. C. , it cannot
be considered again. The chief city magistrate has upheld this objection the first
proviso to section 488 ( 1) which relates to the enforcement of a maintenance order
also says that if such an offer is made, the magistrate may consider any grounds of
refusal stated by the wife and may make an order under the section notwithstanding
such offer, if he is satisfied that there is just ground for so refusing. This would show
that not only at the time of the enquiry into the main petition under section 488 (1) but
also at the time of the enquiry for the enforcement of the order under section 488 (3) it
is open to the respondent to make the offer of his willingness to take back his wife and
daughter and maintain them. To deny him that right would mean that when once an
order under section 488 cr. P. C, is made, the wife has a right to live separately for her
life time. Changed conditions may warrant a review of the situation and if the court
should find that the offer made is bonafide, it should direct the wife to join her husband
and cancel the maintenance if, on the other hand, the wife's refusal is just, reject the
prayer of the husband to take her back and order continuation of payment of
maintenance. But in the enquiry even if the finding is in favour of the respondent, that
will not affect the arrears that had become payable until the date of that order. It will
only affect the liability of the respondent to maintain his wife and child in future.
Therefore in this case, the petitioners are entitled to the arrears claimed by them and
the magistrate in the first instance should issue a warrant of attachment of the property
for realisation of the amount due and also hold an enquiry with regard to the bonafide
offer of the respondent to maintain his wife and daughter, provided they go and live
with him, and also the just cause for refusal, if any set up by the wife, and pass orders
according to law.

(10) The order of the magistrate directing the issue of a warrant of arrest is set aside
and the petition is remanded to the magistrate for disposal according to law in the light
of the observations made above.

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