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Criminal Reference No. 209 of 1957, decided on 5th February 1958.

S. 488 (3), (5)‑Failure of husband to obtain cancellation of order for maintenance does not preclude him from filing objection under subsection (3)‑Magistrate bound to enquire into allegations made by husband before issuing distress warrant.

Failure of the husband to obtain a cancellation of the order for maintenance under subsection (5) of section 488, Criminal Procedure Code, 1898, does not preclude the husband from filing an objection under subsection (3) of section 488 of the said Code. When such an objection is made, it is incumbent that the Magistrate must inquire into the allegations made by the husband, and he cannot in such a case issue a distress warrant without satisfying himself as to the sufficiency of the cause shown. Where the Magistrate did not make any such inquiry, the order under subsection (3) of section 488 of the Code was held to be quite illegal.

56 C W N 843 ref.

A I R 1947 Mad. 423 ; 100 1 C 239 ; 28 Cr. L J 271 and 237 ; 32 Cr. L J 247 and I L R 50 Mad. 663 ref.

Md. Abdul Wadud Mian in support of the Reference.

Nemo in Opposition.

This is a Reference under section 438 of the Criminal Pro cedure Code by Mr. G. Mowla, Additional Sessions Judge, Tippera, dated 22nd November 1957, arising out of Criminal Motion No. 16(1)/57. ‑

2. The facts briefly stated are as follows :‑

The opposite party Dud Meher, wife of the petitioner Abdul Gafur, filed an application claiming maintenance against the petitioner for herself and her minor children, and accordingly maintenance was allowed at the rate of Rs. 25 per month in favour of the opposite party Dud Meher, and Rs. 15 per month in favour of the minor children by Mr. A. Ahmed, Magistrate, 1st Class, Comilla, on 24th October 1953. OD 24th August 1956, the opposite party filed an application for execution of the maintenance order praying for realisation of the amount of maintenance from July IS54 to May 1956. The petitioner objected to it on the ground that the application for maintenance was barred by limitation, and that thereafter the said maintenance order was put into execution, and during the pendency of that case both the opposite party and the petitioner lived as husband and wife for a considerable period, but they fell out again, and began to live separately, and, as such, the maintenance order ceased to have any force.

3. The learned Magistrate, Mr. M. N. Ahmed, negatived the second contention of the petitioner, and held that part of the claim under maintenance order was barred by limitation under the second‑proviso to section 488 (3) of the Criminal Procedure Code, and accordingly he ordered that the application should proceed for the period from August 1955 upto July 1956. The referring Judge further states that his predecessor‑in‑office held that the order of the learned Magistrate was illegal, firstly, because of the fact that he did not make any enquiry regarding the correctness or otherwise of the allegation made by the petitioner that the petitioner and the opposite party lived as husband and wife for a considerable length of time, and subsequently the learned Magis trate allowed the claim for maintenance for the full month of August 1955, although the claim from the 1st to the 22nd August 1955, is time‑barred. On these grounds, he made a reference to the High Court stating that the orders of the learned Magistrate, dated 31st December 1956, deserved to be reversed or at least modified. The High Court after hearing the matter returned the Reference to the Court below with the observation that it is not clear in what respect the modification of the order of the learned Magistrate is necessary, and in what respect the order should be reversed.

4. The learned Judge has now recommended that th order of the learned Magistrate, dated 31st December ; 956, may he versed.

5. The grounds urged in favour of reversing the order are that the petitioner Abdul Gafur in a written objection to the application for execution of the maintenance order contended that the order of maintenance ceased to have any force inasmuch as, during the pendency of the previous petition for execution of the said order, the petitioner and the opposite party lived as husband and wife. This contention has been supported by A I R 1947 Mad. 423. It has been held in that case that when after the passing of an order for maintenance under section 488, Cr. P. C., the husband and wife have resumed cohabitation, the order becomes automatically ineffective and unenforceable. No formal cancellation of that order is necessary.

6. The contrary view has been taken in a number of cases, namely, 100 I C 239 ; 28 Cr. L J 271 and 237 ; 32 Cr. L J 2‑17 and I L R 50 Mad. 663. It has been held in those cases that, if a wife after obtaining the order for maintenance returns to her husband and lives with him for some time, the order of mainte nance will remain in suspense, and not come to an end. It was also held in 28 Cr. L J 271 and 237 that an application for can cellation in such a case is essential.

7. The learned Magistrate seems to have accepted this view and come to the finding that since the temporary reunion between the husband and the wife did not have the effect of cancellation of the order for maintenance, it was not necessary for him to go into the evidence nor find whether there had been any reunion between the petitioner and his wife, the opposite party, after passing of the order for maintenance.

8. The most recent case reported in 56 C W N 843 was placed before him, but he by passed that case by differentiating its force with those of the present case. In that case the husband put up a defence against the execution of the order for mainte nance by the wife on the ground that the wife was living in adultery. The High Court held that the failure of the husband to obtain a cancellation of the order for maintenance under sub section (5) of section 488, Cr. P. C., does not preclude the husband from filing an objection under subsection (3) of section 488 of the said Code. If the husband is able to prove the allegations which he makes in his petition of objection, the learned Magistrate will not only refuse to issue the distress warrant under subsection (3) of section 488, Cr. P. C., but also he should cancel the order for maintenance under subsection (5) of section 488, Cr. P. C. The learned Magistrate observed that in the present case the allegation was entirely different. In this case allegation of the husband is that there was a temporary reunion after the passing of the order for maintenance but after some time they fell out and began to live separately. In the reported case, the husband did not allege that by mutual consent they had been living separately, and, as such, he was not called upon to enter into evidence in regard to the allegation made by the husband. The learned referring Judge says that he does not see how on the clear words of subsection (3) of section 488, Cr. P. C., the learned Magistrate could avoid such an enquiry. It is incumbent that the learned Magistrate must enquire into the allegations made by the husband, and he cannot in such a case issue a distress warrant without satisfying himself as to the sufficiency of the cause shown. As the learned Magis trate did not make any such enquiry, the order is quite illegal.

9. The application for execution of the order for maintenance has been filed on 24th August 1956, and the opposite party, prayed for recovery of the amount of maintenance from July 1954 upto May 1956. The learned Magistrate referred to the second proviso to section 488 (3), Cr. P. C., which lays down that no warrant shall be issued for recovery of any amount due under this section unless an appli cation is made to levy such amount within a period of one year from the date on which it became due, and he has found that in view of this proviso the opposite party is not entitled to enforce the order for any amount due beyond August 1955. Accordingly, he ordered that the execution: would proceed for the amount due for the period from August 1955 to July 1956. This order also, according to the referring Judge, is illegal for the simple reason that as the execution petition has been filed on 24th August 1956, the claim relating to the period from July 1954 upto 23rd August 1955, was barred by limitation. The learned Magistrate, however, allowed maintenance for the f tilt month of August 1955, in spite of the fact that the claim upto 23rd of August 1955, was barred by limitation. Then again the referring Judge pointed out that the opposite party prayed for maintenance from July 1954 upto May 1956, but the learned Magistrate allowed maintenance from August 1955 to July 1956. Thus he allowed maintenance for two months (June and July 1956) in excess of the claim of the opposite party. The referring Judge suggested that on the above grounds the order of the learned Magistrate, dated 31st December 1956, be reversed.

10. Mr. Md. Abdul Wadud Mian appearing in support of the Reference has taken me through the decisions referred to in the letter of Reference, and also through the effect of the different subsections of section 488, Cr. P. C. Mr. Wadud Mian has pointed out that most of the contrary decisions referred to are by the same Judge, and those militate against the latest ruling reported in 56 C W N 843. I fully agree with the con tentions of Mr. Wadud Mian in support of this Reference.

11. Under these circumstances, this Reference is accepted, and the whole order of the learned Magistrate, dated 31^st December 1956, is hereby reversed on the lines of the referring Judge.

12. It is directed that the learned Magistrate should re‑hear the case in the light of these observations.

K.B.A Reference accepted.

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