1. This is a reference made by the Additional Sessions Judge of Sylhet under Section 438, Criminal P.C. An order was made in this case against a person under Section 488, Criminal P.C., directing him to pay maintenance to his wife at the rate of Rs. 5 per month. The order was made on 15th August 1934. Thereafter the husband applied for cancellation of the order under Sub-section (5) of the section on the ground that the wife was living in adultery. This was proved, and the order was cancelled on 13th March 1937. It appeared that the husband still owed the wife maintenance for several months up to the date of the cancellation. Attempts to realize these dues by distress warrant had failed. On the application of the wife, the Additional District Magistrate Mr. S. Goswami, while cancelling the maintenance order made an order on the same date calling on the husband to show cause why he should not be sentenced to imprisonment for default in payment of the arrears. This was done under subs. (3). The notice to show cause was made returnable on 2nd April 1937. On this date the then Additional Magistrate, M.L. Shome, passed the following order:
Heard lawyers of both parties. The order granting maintenance has already been set aside. So no arrear maintenance can now be realised. The case is struck off.
2. Against this order the wife moved the Additional Sessions Judge, and he has made the present reference. I. have no doubt the order must be set aside, but not on the ground stated by the learned Judge. He thinks that by his order of the 2nd April, Mr. Shome was seeking to 'alter or review' the order of his predecessor made on the 13th March, and that this could not be done under Section 369 of the Code. He cites the case in Nanda Narain v. Manmaya Kamini AIR 1917 Cal 799 to show that a final order in a proceeding under Section 488 is in effect, if not in terms, a 'judgment' within the meaning of Section 369. Whether this is so or not-and so far as I have been able to make out, this decision stands alone. I am. not sure that Mr. Goswami's order was a final order at all. He no doubt stated 'the defaulter still owes the petitioner the amounts for the period prior to this order' (i.e. the order of cancellation), but this was really the wife's ex parte statement on which the notice to show cause was issued. The real order was that issuing the notice, and certainly it was not a final order.
3. In showing cause it was no doubt open to the husband to show that no maintenance was due. This he could do by showing that the dues had been paid up or were not payable. Apparently he made the point that the fact that the order for maintenance was cancelled had put an end to his liability even in respect of the arrears, and Mr. Shome was persuaded to accept this view. This is where the learned Magistrate went wrong. An order of can-collation takes effect from the date of the order and has no retrospective operation. It cannot, therefore, affect the arrears due up to the date of the order : see Bhag Sultan v. Mohammad Akbar Khan AIR 1930 Lah 99. On this ground I accept the reference and set aside the order of 2nd April 1937 and direct that the Magistrate shall deal with the matter in accordance with law.