(1) This is a petition filed by the husband against the order of the Additional First Class Magistrate holding that a protection order by the insolvency Court cannot take away the powers of the magistrate for ordering the petitioner's imprisonment under Section 488, Cri. P. C. for failure to comply with the Court's order.
(2) The facts of the case may be briefly stated. The respondent-wife filed a petition M. C. No. 10 of 1961 under S. 488(1), Cri P. C. on the file of the Additional First Class Magistrate, Pollcahi. The Court granted the respondent and her children maintenance of Rs. 60 per mensem. The respondent filed C. M. P. No. 58 of 1963 under S. 488 clause (3) for payment of Rs. 720 being the arrears of maintenance. A warrant was issued by the Court for distress of the petitioner's properties. Again the wife filed C. M. P. 81 of 1963 on 10-6-1963 for a warrant for arrest of the petitioner. A non-bilabial warrant for arrest was issued by the Additional First Class Magistrate, Pollachi. While so, the petitioner moved the insolvency Court by filing I. P. No. 10 of 1963 in the Sub Court, Coimbatore. In I. A. No. 130 of 1963, the second additional Subordinate Judge granted an interim injunction from arrest in execution of the order in M. C. No. 10 of 1961 on the file of the Additional First Class Magistrate, Pollachi, till the disposal of the insolvency petition. The respondent was also a party to this application.
After the passing of this order, the petition under S. 488(3) came up before the Additional First Class Magistrate. On 1-7-1963, the petitioner appeared before the Additional First Class Magistrate, Pollachi, and filed a counter stating that he is immune from arrest by virtue of the order of the civil Court and that he could not be committed to jail for failure to comply with the order in M. C. 10 of 1961. The learned magistrate considered the question whether the order of the insolvency Court granting interim protection from arrest in execution of the order in M. C. 10 of 1961 was binding on him and put an end to his powers to commit the respondent to jail even if the failure to pay arrears of maintenance was without sufficient case. The learned magistrate held that the insolvency Court by issuing an order of protection cannot take away the powers of the magistrate for ordering imprisonment of the erring husband under S. 488(3), Cri. P. A.
(3) Mr. T. R. Ramachandran, learned counsel for the petitioner, submitted that in I. A. 130 of 1963 in I. P. 10 of 1963 the respondent was also a party and the Subordinate Judge granted protection against payment of arrears due to the respondent in M. C. 10 of 1961 and the respondent having been a party and not having challenged that order is forbidden form enforcing payment of arrears of maintenance through a criminal Court. It is unnecessary for the purpose of this petition to consider whether the order granting interim protection under Ss. 5 and 23 of the Provincial Insolvency Act is correct or not. The only question for consideration is, taking the order of the insolvency Court as valid, whether the criminal Court is bared form proceeding under S. 488(3), Cri. P. C.
(4) In In re, Yahia, ILR (1937) Mad 90: (AIR 1936 Mad 793), Wadsworth, J. held that arrears of maintenance payable under a magisterial order under S. 488, Cri. P. C. are a debt provable in insolvency within the purview of sub-section (3) of S. 46 of he Presidency Towns Insolvency Act and in respect of such arrears a protection order can be given. In Muni Krishnayya v. Akulamma, ILR (1940) Mad 692: (AIR 1940 Mad 697), the petitioner who was the husband was directed to pay maintenance to his wife under S. 488 Cri. P. C. He failed to comply with the order,. The magistrate found that the husband had done so without sufficient cause and sentenced him to suffer rigorous imprisonment. Then the petitioner filed an insolvency petition and obtained an order for his release under S. 23(1) of the Provincial Insolvency Act, and on the strength of that order, made an application to the Joint Magistrate for his release.
The Bench referred to the decision of the Allahabad High Court in Shyamacharan v. Anguri Devi, ILR (1938) ALL 486: (AIR 1938 ALL 253), where the Court declined to accept the contention that the mere fact that the applicant had been adjudicated as insolvent showed that he was unable to pay the maintenance of his wife and that constituted sufficient case of non-payment, and observed that the wording of Section 488(3) 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 and neither the protection order nor the adjudication order could be conclusive on this point. The learned Judges further proceeded to observe--
"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."
In Mahomed Hussain v. Emperor, AIR 1940 Bom 344, it was held that a protection order under the Insolvency Act does not protect the insolvent against the special statutory power of committal given to a criminal Court under S. 488.
(5) Section 488(3) is in the nature of a punishment section by a magistrate for disobedience of his order. It provides that if a person ordered to pay maintenance falls without sufficient cause to comply with the order, the magistrate may issue a warrant for levying the amount due and may sentence such person to imprisonment. It is clear from the decision in ILR (1940) Mad 692: (AIR 1940 Mad 697) that whether there is an order of the insolvency Court or not, the Magistrate ice bound to enquire into the question whether the husband failed to pay the maintenance ordered without sufficient cause. This implies that the magistrate is not barred from proceeding with a petition under S. 488(3) by an order of protection given by the Insolvency Court. The view of the magistrate is therefore correct and is upheld.
(6) The petition is dismissed.
(7) Petition dismissed.