1. This is a Reference under Section 438, Criminal P. C., made by the Sessions Judge of Hooghly recommending that the order of Sri M.M. Kusari, Magistrate, First Class, Serampore, dated 3-3-1952, by which he ordered that a distress warrant should be issued unless the husband paid the maintenance grant to his wife Kamala Sundari Dasi from 2-7-1950, on or before 23-3-1952 should be set aside, and the Magistrate should be directed to hold an enquiry into the objection filed by the husband under Sub-section (3), Section 488, Criminal P. C.
2. The facts of this case lie within a short compass and may be briefly stated as follows: On 30-9-1947, the wife Kamala Sundari Dasi obtained an order for maintenance against her husband under Section 488, Criminal P. C., directing the husband to pay her maintenance at the rate of Rs. 40/- per month. It is admitted that the husband paid maintenance up till. May 1948, but did not pay it thereafter. On 2-7-1951, the wife, Kamala Sundari Dasi, filed an application for enforcement of the order of maintenance under Sub-section (3) of Section 488, Criminal P. C. A notice was served upon the husband who filed an application alleging that no order for enforcement could be made against him, because his wife was living in adultery and secondly because the wife had been living separately from him by an agreement, dated 18-3-1949. The husband made a further prayer that on these grounds the order for maintenance might be cancelled under Sub-section (5), Section 488, Criminal P. C. The learned Magistrate refused to entertain this objection filed by the husband on the ground that as the husband did not submit any petition before for the cancellation of the maintenance grant, he had no right to oppose the order for maintenance upon the allegations made by him in his petition. Accordingly the learned Magistrate held the husband liable to pay maintenance to his wife from 2-7-1950 and directed the issue of a distress warrant for the recovery of the same in default of payment by the husband by a certain date. Against this order (is?) made this Reference under Section 438, Criminal P. C.
3. Sub-section (3), Section 488, Criminal P. C. provides that if a person ordered to pay maintenance under Sub-section (1), Section 488 'fails without sufficient cause' to comply with the order, the Magistrate may issue a warrant for levying the amount due. in the manner provided for realisation of fines. It is therefore clear that before a Magistrate can make an order for the issue of a distress warrant, the Magistrate must be satisfied that the husband has failed without sufficient cause to comply with the order for maintenance. In refusing to hold an enquiry upon the objection filed by the husband, the Magistrate acted in violation of the clear provisions of Sub-section (3), Section 488, Criminal P. C. The failure of the husband to obtain a cancellation of the order for maintenance under Sub-section (5), 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 maintenance under Sub-section (5). It is quite clear from the words used by the legislature in Sub-section (3) that the Magistrate must hold an enquiry 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.
4. For the reasons given above, we accept the Reference made by the Sessions Judge of Hooghly, set aside the order of the Magistrate dated 3-3-1952 and direct the Magistrate to hold an enquiry into the allegations made by the husband in his petition of objection, dated 27-8-1951.
5. In the circumstances of the case, it is desirable that the enquiry should be held by a Magistrate other than Sri M.M. Kusari to be nominated by the District Magistrate of Hooghly.
6. I agree.