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Vankar Bhana Rama Vs. Rai Ladu D/O Bhula Barkha and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1973CriLJ780; (1972)GLR909
AppellantVankar Bhana Rama
RespondentRai Ladu D/O Bhula Barkha and anr.
Cases ReferredEmperor v. Beni
Excerpt:
- - 12 orders could have been passed by the learned magistrate on those 12 applications directing thp husband to pay the amounts claimed by the wife in those 12 applications or in default of payment, awarding to the husband independent sentences, in respect of twelve defaults sought to be made good by those 12 applications......of the learned judicial magistrate, first class, baria against her husband for maintenance. the learned magistrate decided that application and ordered the husband to pay to his wife a sum of rs. 45/- per month for her maintenance and for the maintenance of their two children. it appears that for some time the husband paid the amount to the wife. with effect from 11th november 1967 he did not pay maintenance to his wife in terms of the order made by the learned magistrate. he ran into arrears from 11th november 1967 to 10th march 1970 for a period of 28 months. the arrears amounted to rs. 1260/-. therefore, the wife filed the present application under sub-section (3) of section 488 of the code of criminal procedure for enforcement of the said order of maintenance and to recover the.....
Judgment:
ORDER

S.H. Sheth, J.

1. This Revision Application arises out of proceedings instituted under Sub-section (3) of Section 488 of the Code of Criminal Procedure.

2. The facts of the case, briefly stated, are as under.

The petitioner before me is the husband and the opponent No. 1 is his wife. The wife filed Miscellaneous Application No. 4 of 1967 in the Court of the learned Judicial Magistrate, First Class, Baria against her husband for maintenance. The learned Magistrate decided that application and ordered the husband to Pay to his wife a sum of Rs. 45/- per month for her maintenance and for the maintenance of their two children. It appears that for some time the husband paid the amount to the wife. With effect from 11th November 1967 he did not pay maintenance to his wife in terms of the order made by the learned Magistrate. He ran into arrears from 11th November 1967 to 10th March 1970 for a period of 28 months. The arrears amounted to Rs. 1260/-. Therefore, the wife filed the Present application under Sub-section (3) of Section 488 of the Code of Criminal Procedure for enforcement of the said order of maintenance and to recover the aforesaid sum of Rs. 1260/-. The learned Magistrate issued notice to the husband and made it returnable on 30th June 1970. The husband appeared and after giving him an opportunity of being heard, the learned Magistrate issued warrant for recovering the arrears of maintenance. That warrant could not be executed because the husband was not Possessed of any property-moveable or immoveable.

3. The learned Magistrate thereafter recorded evidence of that wife and issued a warrant for the arrest of the husband. On 22nd October 1970 he made his first order directing the husband to pay to his wife the amount of maintenance for one month from 11th March 1969 to 10th April 1969 or in default to undergo rigorous imprisonment for 15 days for willful neglect to maintain his wife and their two children. The husband did not pay the said amount to the wife and underwent rigorous imprisonment for the said period at the end of which he was produced before the learned Magistrate. Thereafter on 2nd December 1970 the learned Magistrate passed another order on the same application directing the husband to pay to his wife a sum of Rs. 45/- for the period from 11th April 1969 to 10th May 1969. He also directed him. in case of non-compliance with his order to undergo rigorous imprisonment for ten days for willful neglect to maintain his wife and their two children. On the expiry of the said period during which the husband underwent rigorous imprisonment he was produced before the Court. Thereafter on 11th December 1970 the learned Magistrate made the third order directing the husband to pay to his wife a sum of Rs. 45/-for her maintenance and for the maintenance of their two children for the period from 11th May 1969 to 10th June 1969. He also ordered him to undergo rigorous imprisonment for seven days in case of non-compliance with his order for willful neglect of his wife and children. The husband did not pay the aforesaid amount and. therefore, after he had undergone the aforesaid period of rigorous imprisonment he was produced again before the learned Magistrate who made the fourth order on 17th December 1970 by which he directed the husband to pay a sum of Rs. 45/- to his wife for the aforesaid purpose for the period from 11th Juno 1969 to 10th July 1969. He also ordered him to undergo in case of non-compliance with his order rigorous imprisonment for 8 days for willful neglect to maintain his wife and their two children. After the husband had undergone rigorous imprisonment for the said period he was produced before the Court. The learned Magistrate thereafter passed fifth order on 24th December 1970 directing the husband to Pay to the wife a sum of Rs. 45/- for the aforesaid purpose for the period from 11% July 1969 to 10th August 1969. He also directed him. in case of non-compliance with his order to undergo rigorous imprisonment for 12 days for willful neglect to maintain his wife and children. The husband underwent rigorous imprisonment for the aforesaid period and did not pay anything to his wife. He was, therefore, produced before the learned Magistrate who made the sixth order on 4th January 1971 directing the husband to pay to the wife a sum of Rs. 45/- for the aforesaid purpose for the period from 11th August 1969 to 10th September 1969. He also ordered him to undergo, in case of non-compliance with his order rigorous imprisonment for 8 days for willful neglect to maintain his wife and children. The husband underwent rigorous imprisonment for the aforesaid period and did not pay any thing to his wife. On the expiry of that period he was produced before the learned Magistrate who made the 7th and last order against him. He directed him to Pay a sum of Rs. 45/- to his wife for the aforesaid purpose for the period from 11th September 1969 to 10.10.1969. He also directed him in case of non-compliance with his order to undergo rigorous imprisonment for six days for willful neglect to maintain his wife and children. Thereupon the husband filed in the Court of Sessions at Godhra Criminal Revision Application No. 2 of 1971 challenging the validity of the several orders passed by the learned Magistrate from time to time on the single application made by the wife for enforcement of the maintenance order. For the reasons recorded in his judgment the learned Sessions Judge rejected the contentions raised before him and dismissed the Revision Application.

4. Thereupon the husband has filed this Revision Application in this High Court challenging the validity of several orders made by the learned Magistrate.

5. The auction which Mr. Pandya, appearing for the husband, has raised before me is this: whether a Criminal Court has jurisdiction to make several orders one after another on an application made by the wife under Sub-section (3) of Section 488 of the Code of Criminal Procedure for enforcement of the maintenance order where there are arrears of maintenance due from the husband for more than one month. In other words, the contention which he has raised before me is that such an application cannot be dealt with piecemeal by the learned Magistrate and that the jurisdiction to deal with the said application comes to an end as soon as the learned Magistrate makes some final order on that application. According to him. therefore, as soon as the first order was made by the learned Magistrate on that application the proceedings came to an end and the Court became focus officio and did not have the jurisdiction to revive the proceedings or to make any further orders to the detriment of the husband for the claim made by the wife in the said application.

6. In order to examine the contention raised by Mr. Pandya it is necessary to turn to Sub-section (3) of Section 488 of the Code of Criminal Procedure. The material portion of Sub-section (3) is in the following terms.

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 Levine 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 second proviso to Sub-section (3) is in the following terms.

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 law such amount within a period of one year from the date on which it became due.

Reading the principal part of Sub-section (3) in light of the second proviso to it, it appears to me that a Magistrate has jurisdiction to enforce recovery of arrears of maintenance due under an order of maintenance made by him within a period of 12 months. In the instant case the wife made the present application for recovery of arrears of maintenance for 28 months. The learned Magistrate, however, was conscious of the limitation on his powers and therefore dealt with such arrears as were within the period of 12 months. In fact, no contention has been raised by Mr. Pandya on this account before me. The power which has been conferred upon a Magistrate is to sentence a defaultins husband to imprisonment for a term which mav extend to one month for the whole or anv part of one month's allowance remaining unpaid. This indeed will be subiect to the fact that he cannot enforce recoverv of arrears of maintenance which became due before one vear prior to the institution of the application under Sub-section (3). It is not in dispute before me that if the wife had made 12 independent applications for recoverv of arrears for 12 months. 12 orders could have been Passed by the learned Magistrate on those 12 applications directing thp husband to Pay the amounts claimed by the wife in those 12 applications or in default of payment, awarding to the husband independent sentences, in respect of twelve defaults sought to be made good by those 12 applications.

7. The question, however, which has been raised is whether more than one order can be passed on a single application which has been filed for recovery of arrears of maintenance for more than one month. The position would have been slightly different if the learned Magistrate had made one single consolidated order in respect of the entire period of twelvemonths. That is not the case before me. One after another he has made seven orders in respect of seven different periods. He could have made seven independent orders on seven applications if the wife had filed them. This position has not been disputed. The seven orders which the learned Magistrate has made one after another on a single application have been made in respect of different periods. His orders in terms state these facts. The question is whether he could have done this.

8. Mr. Pandya has invited my attention to the Full Bench decision of the Allahabad High Court in Emperor v. Beni : AIR1938All386 . The facts of that case were slightly different and the question which arose for the consideration of the Allahabad High Court was also different. The Question which was raised in that case was whether Section 488(3) enjoins that there should be separate warrants in respect of each term of imprisonment for each month. In other words, where arrears have been allowed to accumulate, can the Court issue one warrant and impose a cumulative sentence of imprisonment? The Full Bench of the Allahabad High Court answered the question in the affirmative and held that the Court can issue one warrant and impose cumulative sentence of imprisonment in respect of arrears claimed for more than one month. Where such cumulative sentence is imposed for different months it is Open to a Magistrate to issue one warrant to execute that order. The position in this case is, in my opinion rather converse. Here there is one single consolidated application for recovery of arrears of maintenance for more than one month. The learned Magistrate chose to Pass independent order one after another in respect of each month's arrears. Could he have done it? The principle laid down by Section 488(3) is that the Magistrate has the jurisdiction to award imprisonment to a defaulting husband in respect of default in payment of each month's arrears. In my opinion, as long as that principle is not violated, the Magistrate has the power to deal with a consolidated application for recovery of arrears for more than one month in such reasonable and just manner as he thinks fit. In the instant case, the learned Magistrate could have made a single order for the entire period and could have awarded to the defaulting husband such sentence within, the prescribed limit as he thought fit. If he had done so, he would not have been wrong or in error. Instead of doing so. he followed a different procedure. He thought fit to deal with the application for different periods by making more than one order for each of the periods for which arrears were claimed. The orders which he has made rather than suffering from any legal infirmity have shown leniency to the husband. The only object which I discover from several orders made by him one after another is to give an opportunity to the husband to pay one month's amount or to undergo in default thereof some sentence of imprisonment. If the husband had Paid the first amount ordered by the learned Magistrate, probably he would have taken a different view of the matter and dealt with the matter differently. Since the husband did not avail himself of the opportunity given by the learned Magistrate by complying with his first order, the learned Magistrate thought fit to make a second order directing him to pay another amount for another period or in default thereof to undergo another period of imprisonment. It is in that process that he made seven orders. What he did by making the first order was to give an opportunity to the husband to comply with his order for one month. At the same time he was allowing the matter to remain alive or in other words, he was adjourning the matter to find out the response of the defaulting husband to the first order that he had made. Having found no response from him he took up the case on the next date and made another order for another period. He might not have stated in his order that he had been adjourning the matter from time to time but. in my opinion, there cannot be any other effect of what he has done except the one which I have stated. That is the only object with which the learned Magistrate was dealing with the matter from time to time. If the learned Magistrate has jurisdiction to award a consolidated period of imprisonment to a defaulting husband for arrears of maintenance for more than one month in a single application made by the wife in that behalf. I see no reason why he cannot make on one application at different times different orders for different periods thereby adjourning the matter from time to time and showing consideration and leniency to a defaulting husband. In my opinion, therefore, the orders made by the learned Magistrate do not suffer from any legal infirmity.

9. The only contention raised by Mr. Pandya, therefore, fails and is rejected.

10. I confirm the orders made by the learned Magistrate and the order made by the learned Sessions Judge in the revision application. This Revision Application therefore, fails and Rule is discharged. If the husband is on bail and has not undergone the full Period of imprisonment awarded to him by the learned Magistrate, he shall surrender to his bail.


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