1. In this case one Bai Rahmat and her husband Mahomedalli lived together till 1926. In the year 1927 suits were brought in the civil Court by the husband for restitution of conjugal rights and by the wife for maintenance. The husband failed in his suit, and the wife succeeded in securing an award of maintenance at the rate of Rs. 12 per month, The appeal filed by the husband as a pauper also failed. The husband then applied for being adjudicated an insolvent on June 20, 1928, and was adjudicated an insolvent on February 9, 1929. The present application before the Magistrate was filed on December 22, 1928, under Section 488 of the Criminal Procedure Code, The Magistrate, on consideration of the whole evidence, came to the conclusion that the opponent earned at least Rs. 40 to 50 per month and the amount of Rs. 12 decreed by the civil Court was a proper maintenance.
2. It is urged on behalf of the applicant that as there is a decree of the civil Court in existence which can be executed, the Magistrate has no jurisdiction to pass an order under Section 488 of the Criminal Procedure Code. There is nothing in Section 488 to oust the jurisdiction of the Magistrate when a decree has been passed by the civil Court, Reliance, however, has been placed on the decision in Subbaramakkammah (1802) 2 Weir 616. In the present case, though there was a decree for maintenance in favour of the wife, the decree in fact could not be executed on account of the insolvency proceedings initiated by the husband. The arrears of maintenance decreed by the civil Court would be a debt which could be proved in insolvency, but future payments cannot be proved in insolvency as they are incapable of valuation and might cease at any moment if the husband and wife decided to live together. In the present case the wife was not able to get the maintenance Pathar J, on account of the pendency of the insolvency proceedings, Under Section 44, Sub-section (1), Clause (d), of the Provincial Insolvency Act V of 1920, an order of discharge shall not release the insolvent from any liability under an order for maintenance made under Section 488 of the Code of Criminal Procedure, 1898. Though there is a decree of the civil Court in existence, it is merely a paper decree which cannot be executed on account of the pendency of the insolvency proceedings. A mere decree of a civil Court awarding maintenance is not equivalent to maintaining the wife. Under these circumstances, we think that the Magistrate has jurisdiction under Section 488 to pass an order for maintenance in favour of the wife. The decision of the Madras High Court in the case of Kent v. Kent (1925) I.L.B. 49 Mad. 891 is consistent with this view. Reliance is placed on behalf of the applicant on the decision in the case of Halfhide v. Halfhide I.L.R. (1923) 60 Cal. 867. That case relates to Clause (3) of Section 488, and decides that if the husband has applied for insolvency and has been adjudicated an insolvent, it cannot be said that he has wilfully neglected to maintain his wife under Clause (3) of Section 488 of the Criminal Procedure Code and that the order for adjudication being conclusive on the point of his inability to pay his debts, the Magistrate may not issue a warrant for enforcement of the order passed under Section 488 of the Code. There is, however, a change in Clause (3) of Article 488. The words 'fails without sufficient cause' are substituted for the words 'wilfully neglects'. The case is not an authority on the question of the jurisdiction of the Magistrate to pass an order under Sub-section (1) of Section 488 in case the husband has applied for insolvency and neglected to maintain his wife. We think, therefore, that the Magistrate having found that the husband is able to earn at least Rs. 40 or 50, the award of maintenance at the rate of Rs. 12 per month is not excessive.
3. We would, therefore, discharge the rule. There will be no order for costs.