1. This is an application to revise the order passed by the learned Sub-Divisional Magistrate of Chandragiri on the 29th October, 1939, on an application made to him on the 28th October, 1939, on behalf of the petitioner. The petitioner is the husband of a woman named Akkulamma in whose favour the learned Joint Magistrate passed an order in M.C. No. 104 of 1938 on the 7th February, 1939, directing this petitioner to pay his wife Rs. 3-8-0 per mensem as maintenance under Section 488, Criminal Procedure Code. The petitioner did not pay in accordance with that order. Before she could enforce the order, the petitioner filed a suit O.S. No. 128 of 1939 in the Court of the District Munsif of Tirupati and obtained an interim injunction restraining his wife from enforcing the order for maintenance. The injunction was in force until 21st July, 1939. On that date, the interim injunction was vacated and the petitioner's wife on the 24th July, 1939, applied to the joint Magistrate to direct this petitioner to pay Rs. 17-8-0 being the arrears for five months. The learned Joint Magistrate issued a distress warrant and as the money was not realised, he gave notice to the petitioner who appeared before him. The Magistrate found that lie had without sufficient cause failed to pay the money due to his wife under the maintenance order. The Magistrate, therefore, sentenced him to suffer rigorous imprisonment for one month, or until the amount of the arrears should sooner be paid. This order was passed on the 23rd October, 1939. On the 24th October, the petitioner filed an insolvency petition in the Court of the District Munsif and obtained from him an order for his release under Section 23(1) of the Provincial Insolvency Act. The District Munsif communicated a copy of this order to the Joint Magistrate with a letter dated 25th October and the petitioner made an application on the 28th October for his release. The learned Joint Magistrate dismissed his application for release and this revision petition has consequently been brought.
2. The contention on behalf of the petitioner is that the protection order passed by the Insolvency Court is a decision of a competent Civil Court within the meaning of Section 489(2), Criminal Procedure Code, in consequence of which the Joint Magistrate is compelled to cancel the sentence of imprisonment passed upon this petitioner. There is no authority for this contention. Learned Counsel for the petitioner has referred us to the cases reported in Tokee Bibi v. Abdool Khan I.L.R. (1879) Cal. 536 and Halfhide v. Halfhide I.L.R. (1923)Cal. 867. But we do not think that they have any application. In the earlier case there was no sentence of imprisonment passed at all. In the second case, the protection order had been issued before the sentence of imprisonment was passed, and after the sentence of imprisonment was passed, an adjudication order had been passed and the protection order, continued until discharge. Their Lordships of the Calcutta High Court said:
In our opinion, the fact that he has been adjudicated an insolvent is conclusive, so long as the order of adjudication stands, that the petitioner is unable to pay his debts. There is also the order of protection. It follows, therefore, that the petitioner being unable to pay his debts, is not guilty of wilful neglect within the meaning of Section 488, Criminal Procedure Code.
3. It is noticeable that there was also no finding by the Magistrate of wilful neglect in that case. The terms of Section 488(3) have since been altered. There is no question now of 'wilful neglect.' The section reads:
If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order...sentence such person...to imprisonment.
4. This wording shows that in every case it is the duty of the Magistrate to find out whether the person ordered to pay maintenance under Section 488 has or has not failed without sufficient cause to comply with the order. Neither the protection order nor the adjudication order could be conclusive on this point. The question is one of fact which the Magistrate has to decide for himself. Prima facie, of course, it would appear to a Magistrate that an order of protection or an order of adjudication would be sufficient to show that failure to comply with an order to pay maintenance-had not been without sufficient cause, but it cannot be said that the Magistrate's hands would be tied by the order of the Insolvency Court. Learned Counsel for the petitioner has referred us to the decision of Mr. Justice Wadsworth reported in Yahia In re : (1936)71MLJ430 . That has no bearing upon the point before us. The learned Judge has held that arrears of maintenance payable in respect of magisterial order under Section 488, Criminal Procedure Code, constituted a 'debt or liability provable in insolvency' within the meaning of Section 46(3) of the Presidency Towns Insolvency Act. The learned Judge has not anywhere suggested that a protection order issued by an insolvency Court would necessarily be conclusive for a Magistrate making an inquiry under Section 488(3), Criminal Procedure Code. The matter has been dealt with very clearly by Mr. Justice Allsop of the Allahabad High Court in the case reported in Shyama Charan v. Anguri Devi I.L.R. (1938) All. 486. The learned Judge has said:
It has also been urged that the mere fact that the applicant has been adjudicated an insolvent shows that he is unable to pay for the maintenance of his wife and that that constitutes sufficient cause for non-payment. Here again I am unable to agree. Learned Counsel has suggested that the whole of the insolvent's property vests in the receiver and there is nothing left out of which he can maintain his wife. This argument overlooks the fact that the property of the insolvent which vests in the receiver does not include any property which is exempted by the Code of Civil Procedure, 1908, from liability to attachment and sale in execution of a decree. Under the provisions of Section 60, Civil Procedure Code, as now enacted the salary to the extent of the first hundred rupees and one half of the remainder of such salary is exempt from attachment. The applicant would therefore, if he is prepared to do work and earn a salary, be in a position to support his wife.
5. The learned Judge has also pointed out that:
An order passed by a Magistrate under Section 488(3), Criminal Procedure Code, for the imprisonment of a person who fails to pay a maintenance allowance is a sentence of imprisonment.
6. That is the word used in the Code itself. The learned Public Prosecutor has contended with much force that the Magistrate who has passed such a sentence has no power to cancel his own order. Learned Counsel for the petitioner has discussed the question whether a proceeding under Section 488 as 'a criminal case' or not. But we think that that is not a relevant discussion. It appears to us that the orders referred to in Section 489(2) which the Magistrate can cancel or vary are orders relating to the amount of maintenance payable. We do not think that it is possible for a Magistrate who has passed a sentence of imprisonment under Section 488(3) to cancel the sentence merely because the Insolvency Court has issued an order of protection. The sentence of imprisonment is a punishment inflicted for breach of the order. It cannot be considered in the terms of Section 23 of the Provincial Insolvency Act that a person who has been sentenced under Section 488(3) is under 'imprisonment in execution of the decree of any court for the payment of money. This view derives support from the decisions in Mehr Khan v. Mst. Bakht Bhari I.L.R.(1928)Lah. 406, Mating Tin v. Ma Hmin I.L.R. (1933)Rang. 226 and Mahomed Ali Mithabhai, In re A.I.R. 1930 Bom. 144. In the last case, it was held that a wife could make an application for maintenance under Section 488, Criminal Procedure Code in spite of the fact that she had already obtained a decree in the Civil Court for maintenance, payments under which were suspended by her husband who had filed an insolvency petition. Moreover even discharge of an insolvent does not free him from liability to obey an order under Section 488, Criminal Procedure Code. Vide Section 44(1)(d) of the Provincial Insolvency Act.
7. For these reasons, we think that the order of the learned Magistrate is correct and this revision petition is dismissed. The petitioner must surrender to his bail to serve out the remainder, of the period of imprisonment to which he has been sentenced.