1. Shrimati Bimla Devi, wife of the applicant Bam Kishore, claimed maintenance from him. The Magistrate awarded maintenance to her as well as her child, although the applicant had contested her claim. The applicant went up in revision, but his revision application was also dismissed. Bimla Devi then filed an application for the recovery of the arrears of maintenance which had been awarded to her and her son. Notice was issued to the applicant and he contested this application again on the grounds that Bimla Devi was refusing to live with him without sufficient reason and was living in adultery. He therefore, prayed that Bimla Devi's prayer should be rejected and no distress warrant should be issued against him.
2. The learned Magistrate came to the conclusion that the objection filed by the applicant was mala fide & was lodged only to delay the execution of the order passed against him. It may be mentioned here that the applicant had not taken the plea of his wife's adultery when the main case was contested. The Magistrate also held that even if it foe accepted that Bimla Devi is living in adultery, there was no justification for not paying the maintenance legally awarded to her upto the time when she contracted any adulterous relationship. In his opinion no retrospective effect could be given to an order and so he did not reopen the inquiry and dismissed the objection filed by the applicant. He, however, observed that if the objection of the applicant was meant to be an application for the cancellation of the order of maintenance, it can be filed separately under Section 488 (5). Cr. p. C.
3. The applicant went up in revision against this order. It was contended on his behalf that under Clause (3) of Section 488, Cr. P. C., he was entitled to show cause why he failed to comply with the order passed against him and, therefore, as Bimla Devi was living in adultery and was also keeping away without any justifiable reason, it was the duty of the Magistrate to enquire into the matter. This contention was not accepted by the learned Sessions Judge and he confirmed the order passed by the Magistrate.
4. The applicant then came up in revision before this Court and the same contention has been pressed before me.
5. The relevant part of Section 488, Cr. P. C. runs as follows :-
'Subsection (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 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:
Provided that, if such person offers to maintain his wife on condition of her living with him, & she refuses to live with him such Magistratemay consider any grounds of refusal stated by her, and may make an order under this 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.) ..........
(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 that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.'
It would thus appear that in Sub-section (5) it is specifically mentioned that the order passed against the husband can be cancelled if any of the three causes mentioned in Sub-sections (4) and (5) exists. On the other hand under the proviso of Sub-section (3), only one of those three causes is mentioned. The proviso to Sub-section (3) specifically mentions that if the husband offers to maintain his wife on conditions of her living with him. still the Magistrate if he finds that the wife is justified in not coming back to her husband he would maintain the order passed by him and issue the distress warrant. There is no mention in Sub-section (3) of the other two causes. That the wife is living in adultery or that she is living separately by mutual consent is not a matter which comes within the scope of Sub-section (3).
6. The proviso to Sub-section (3) is added in the interests of the wife and not the husband. It is to stop a court from too readily accepting the proposition that as soon as a husband offers to maintain his wife, if she lives, with him, he ceases to 'neglect' or to 'refuse to maintain' his wife. It was a recognition of the principle that a woman is entitled to live with that amount of decency and dignity which prevails in her class and if the treatment of the husband towards his wife does not permit her to lead such a life, his conduct amounts to a 'neglect' and 'refusal to maintain' within the meaning of Section 488 Sub-section (1). Such an offer is. therefore, to be carefully tested and if the wife gives adequate reasons for refusing to live with her husband, she is not to be deprived of her right to maintenance. It is only when her reasons are insufficient that her claim can be denied. Under the existing social code the proper place for a wife is with her husband. She should not expect her husband to be an angel and she cannot be permitted to leave her husband and yet claim maintenance if he suffers only from normal human weaknesses which, she is not willing to overlook or tolerate.
7. The counsel for the applicant, has, however, relied on three decisions. They are Sangavva Gulappa v. Gulappa Kariyappa 43 Cri LJ 826: (AIR 1842 Bom 258) (A); Kamala Sundari Dassi v. Nilmony Das : AIR1953Cal343 and Hari Narayan v. Mt. Rani Devi, AIR 1952 Madh B 53 (C). I have given my anxious consideration to the decisions cited above, but with all respect to the learned Judges, who gave these decisions, I cannot agree with their view.
8. I now proceed to give my reasons for holding a different view- The learned Judges of theBombay High Court in the Bombay decision cited above observed as follows:
'It is necessary to examine the language of the various provisions if Section 488, Clauses (1) and (2) deal with the making of orders for maintenance to wives and children. Clause (3) says that if any person so ordered fails without sufficient cause to comply with the order, the Magistrate may enforce the order in the manner there provided. It is clear from this that the order cannot be enforced in the manner provided, if sufficient cause for nonpayment is shown, and that must apply to arrears of maintenance due under an order. Clause (4) says that no wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery. The general language here employed seems to make this clause applicable to any sum receivable by a wife by way of maintenance including arrears of maintenance. So that the effect of Clauses (3) and (4) together is that on proof that the wife is living in adultery the Magistrate will be justified in refusing and indeed bound to refuse to execute an order for maintenance, quite apart from the Question Whether the order has been cancelled or set aside.'
In the Calcutta case cited above, the learned Judges observed,
'The failure of the husband to obtain a cancellation of the order for maintenance under Subsection (5) of Section 488 does not stand in the way of his filing an objection under Sub-section (3) 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-section (3) of Section 488. but he should also cancel the order for maintanance under Sub-section (5). It is quite clear from the words used by the legislature in Subsection (3) that the Magistrate must hold an inquiry 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.'
9. The learned Judge who decided Hari Narayan's case (C) cited above, followed these two decisions and disagreed with the view expressed in other decisions.
10. It would be seen from the extracts quoted above that in the opinion of the learned Judges, the phrase 'fails without sufficient cause' includes the raising of the pleas which are mentioned in Sub-section (4). In my opinion the phrase which should have been interpreted was not merely' fails without sufficient cause', but 'fails without sufficient cause to comply'. 'Comply' means to yield, to submit or to carry out. The word 'fails' also cannot connote the meaning of voluntary refusal. 'Failure to comply' can, in my opinion, include only such grounds which show that for some reason the person against whom the order was passed was not able to carry it out. These words do not give a discretion or right to the person against whom the order is passed to decide whether the original order was justifiable or not. An order passed by a competent court cannot be contested, or challenged.
11. It is the basic principle of administration of justice that an order passed by a competent court is final and the same issue which has been decided in that case cannot be a reason for reconsidering the case. It is in the light of this basic principle that we should interpret the words 'fails without sufficient cause to comply'. If it is accepted that Sub-section (4) governs Sub-section (3), it would defeat the very purpose of Section 488 Cr. P. C. An unscrupulous husband can again and again. raise the plea of his wife living in adultery and the court would be compelled to enquire into this plea again and again. I asked the counsel for the applicant whether the very purpose of Section 488 Cr. P. C. would not be defeated if the interpretation mentioned in the decisions cited above is accepted and he had to admit that it will have such an effect. Obviously such an interpretation cannot be accepted. Section 488 Cr. P. C. has been enacted to secure a speedy remedy for those neglected wives and children who are unable to maintain themselves. If a husband makes repeated allegations of adultery against his wife and the court must necessarily make an inquiry about these allegations whenever they are made it would be easy for him to considerably delay the execution proceedings if not completely put them to a standstill, Section 488 Cr. P. C. would then fail to achieve its purpose. In the words of Sir James Pitz James Stephen, 'Section 488 is a mode of preventing vagrancy or at least of preventing its consequences', but if the husband can delay the execution of an order against him by taking mala fide and frivolous pleas, it will leave the wife unsupported for a fairly long time and thus it will not be instrumental in preventing vagrancy or its consequences.
12. I am also of the opinion that the principle of res Judicata applies. Proceedings under Section 438 Cr. P. C. are of a quasi civil nature. In a very old, case of our High Court, Laraiti v. Bam Dial ILR 5 All 224 (D), Justice Mahmood observed
'In dealing with the main question raised by this reference, I am of the opinion that the order of the District Magistrate, dated the 2-3-1880, must be taken to have adjudicated upon all the facts antecedent thereto and connected with the objection of Bam Dial as to his wife's leading an adulterous life. Upon the general principles or the rule of res judicata I am of opinion that the Deputy Magistrate was wrong in law in reopening matters already adjudicated upon.& his order directing the discontinuance of maintenance on the ground of facts antecedent to the District Magistrate's order must be held to be illegal.'
13. 'This decision was not considered by the learned Judges who gave those decisions which I have cited above. I find myself in agreement with the view expressed by Justice Mahmood. It, therefore, seems to me that once an order of maintenance has been passed, even if it is accepted that the applicant in his own discretion can refuse to submit to that order, it must be for some cause which arose alter the pronouncement of that order. For any cause that existed at the time when the order was passed, it is not open to him to have the same reason considered by the court again.
14. The decisions of the various High Courts on this point can be divided in three groups: The first view is that once the Magistrate passes an order of maintenance, it remains in force until it is cancelled either under Sub-section (5) of Section 488 Cr. P. C. or is altered or modified under Section 489 Cr. P .C. This view is supported by the following decisions:
(a) Mahbuban v. Fakir Baksh ILR 15 All 143 (E).
(b) Budhni v. Dabal ILR 27 All 11 (F).
(c) Tari Bala v. Kibal Ram, AIR 1938 Cal 144 (G).
(d) Bhag Sultan v. Mohd Akbar Khan AIR 1930 Lah 99 (1) (H).
(e) Kanagammal v. Pandara Nadar : AIR1927Mad376 .
15. It was observed by Zafar All J. in BhagSultan's case (H):
'The fact that a wife is living in adultery does not automatically deprive her of the maintenance, for the order of maintenance once passed stands good until it has been cancelled.'
The same view was expressed in the other cases cited above. The learned Judge of the Madras High Court who decided Kanagammal's case (H) want to the length of holding that even if the wife-returns to the husband, it will not have the effect of bringing the order of maintenance to an end automatically, but it remains in force until it is cancelled.
16. The second view was expressed by Mahmood J. in In the matter of the petition of Din Mohammad ILR 5 All 226 (J). He was of the opinion that if the words of Section 488(3) are strictly construed the first view mentioned above was correct but equity demanded that an extension should be given to their meaning. He, therefore, held that where the wife ceased to be a wife because she was divorced the order of maintenance had exhausted itself and the husband could plead it as a sufficient cause for failure to comply within the meaning of Section 488(3). He observed:
'The construction perhaps goes beyond the letter of the statute, but extension by equity of the language of statutes has been recognized to be allowable in cases where such extension clearly gives effect to the intention of the legislature.'
In support of this interpretation he relied upon the observations of Westropp C. J., in the case of Kasam Pirbhai In re 8 Bom HCR Cr. 95 (K). Westropp C. J. observed in a similar case as follows:
'That was a proper order at the time it was made, but We think the ground-work of that order has now been removed, and we cannot consider it any longer a continuing binding order upon the applicant. .......
We do not think that the Magistrate ought to issue an attachment upon or otherwise to execute the order, it being in fact 'functus officio'. We do not, however, quash or set aside the order, it having been made a valid order when made.'
This view was followed in the Full Bench decision by the majority of the Judges in 'Shah Abu Ilyas v. Ulfat Bibi ILR 19 All 50 (L). They had held that if the order had become unenforceable it is a matter which should be considered under Section 488 (3). Knox J. dissenting stuck to the first view which he had expressed in ILR 15 All 143 (E) cited above.
17. The majority view was accepted in U Ba Thaung v. Ma Aye ILR 10 Rang 194: (AIR 1932 Rang 94) (M). In this case a child in whose favour the order was passed had attained majority and was able to maintain itself. It was held that the cider had spent itself and the father could urge it as a. sufficient cause for failure to comply under Section 488(3).
18. The same view was expressed in a Madras case Suryanarayana v. Lakshmi Sunclaramma, AIR 1943 Mad 416 (N).
19. The third view is that Sub-section (4) of Section 488 Cr. P. C, governs Sub-section (3) and all these pleas can be raised at this stage by the husband. This view is supported by the three decisions which I have cited in an earlier part of this decision. I have already given my reasons why I cannot accept this view.
20. It, therefore, seems to me that on a correct interpretation of these words only that type of causes can be urged under Sub-section (3) which do not challenge or contest the order passed under Sub-sections (1) and (2). If a plea (which was open to the husband at the time when he contested the claim of his wife but was not raisedby him), is advanced at the time when she applies for a warrant of execution, it cannot be considered under Sub-section (3). He can only file an application for the cancellation of the order under Sub-section (5) and then this plea can be heard. In this case if the applicant contends that his wife was living in adultery at the time when the maintenance order was passed against him, he has to thank himself because although he contested this claim, he did not take this plea.
21. Where the husband has made no allegations against his 'wife that, she was leading a life of adultery and he takes up this plea for the first time when the wife proceeds to execute the order, on the face of it, it appears to be mala fide. If the wile had contracted any adulterous relationship subsequent to the passing of the maintenance order, she is entitled to her maintenance up-to that time at least when she started leading a life of adultery. In such circumstances the applicant can seek relief under Sub-section (5) of Section 488 Cr. P. C. Similarity in the language of Subsection (4) and Sub-section (5) also indicates that Sub-section (4) is to be read with Sub-section (5) or Sub-section (1) but not with Sub-section (3). In my opinion the legislature has broadly mentioned three causes in Sub-section (4) on the basis of which a husband cannot be compelled to maintain his wife. If any of these causes existed at the time when the claim for maintenance was brought by the wife, these causes should be mentioned by the husband at that time. If on the other hand any of these causes arose after the maintenance order was passed in favour of the wife, then the only course open to the husband is to apply for the cancellation of the maintenance order under Sub-section (5). The legislature could not have contemplated that not only a third but a repeated opportunity was to be given to the husband to contest the order of maintenance passed against him on the basis of these very causes which he could have raised at the time of trial.
22. As I agree with the second view, I am of the opinion that the words 'fails for sufficient cause to comply' cannot be stretched to include contentious pleas. Only such circumstances which show that the order has exhausted itself can be placed before the court. In cases where the wife has ceased to be a wife or the child has become a major and is able to maintain itself or a reconciliation has taken place between the husband and wife and she is living with her husband it is open to the husband or the father to place the changed picture before the Magistrate with a view that the application for execution filed by the wife or child be dismissed. But where the tension remains and the order is evaded on the allegation that the wife is living in adultery, it amounts to challenging the order of maintenance and is a refusal and not a failure to comply. The husband cannot be permitted to decide a contention in his own favour and then disobey the order of the court. Such a plea cannot be heard under Sub-section (3) of Section 488 Cr. P. C. It is, however, open to him to proceed under Sub-section (5) praying for a cancellation of the order.
23. The applicant has also made a very vague allegation. A court cannot be compelled to make an inquiry into such indefinite allegations. Although the applicant alleged that his wife is living in adultery, he neither gave any approximate time when according to his information the wife started living an adulterous life, nor did he name any person with whom she was carrying on adulterous affair. The Magistrate was not bound to make an inquiry into such vague and indefinite allegations.
24. As regards the second plea of the applicant that he was willing to maintain his wife, if she lived with him, it is not open to the applicant. The maintenance order was passed in favour of the wife not only on the allegation of cruelty, but also because she proved that the applicant had married another woman. Under the recent proviso added to Sub-section (3) this by itself is a lust ground for the wife to refuse to live with the husband. The Magistrate was, therefore, justified in coming to the conclusion that this was a mala fide application and he committed no illegality if he rejected this application summarily and did not enquire into the allegations.
25. I have mentioned above that the order of maintenance in this case was also in respect of the minor son of the applicant and the applicant has not paid anything even to him. This claim was certainly executable and it could not nave been refused even if the wife was living in adultery.
26. I, therefore, maintain the order passed by the Magistrate in this case and dismiss this application of revision. The stay order is vacated.