Back
In the High Court of Andhra Pradesh, Hyderabad
MR. MADHAVA REDDY, J.
Mohammad Pasha - Petitioner
Versus
Mumtaz Begum and others - Respondent
Crl. R.C. No. 744 of 1970
Decided on : 31-03-1971
A warrant for levying the amount due under Section 488(1) Cr. P.C. must be preceded by a notice issued to the husband requiring him to comply with the order, and an enquiry must be held to determine whether the husband has failed to comply with the order without sufficient cause.
Headnote:
MAINTENANCE - SECTION 488 CR.P.C. - SECTION 488(3) CR.P.C. - WARRANT FOR LEVYING AMOUNT DUE - IMPRISONMENT FOR DEFAULT - NOTICE TO HUSBAND BEFORE ISSUANCE OF WARRANT - NECESSITY - ENQUIRY INTO SUFFICIENT CAUSE FOR NON-COMPLIANCE - ESSENTIAL - ORDER OF IMPRISONMENT WITHOUT NOTICE AND ENQUIRY - ILLEGAL.
Fact of the Case:
The husband challenged an order directing him to be committed to jail for one month for failing to comply with the order of the Magistrate directing payment of maintenance allowance to his wife awarded under Section 488 Cr. P.C.
Finding of the Court:
The court held that the order of imprisonment was illegal as it was passed without issuing a prior notice to the husband and holding an enquiry into whether he had failed to comply with the maintenance order without sufficient cause.
Issues: Whether a notice should be issued to the husband before issuing a warrant for levying the amount due under Section 488(1) Cr. P.C.
Ratio Decidendi: The court held that Section 488(3) Cr. P.C. does not expressly require the issuance of a notice to the husband before issuing a warrant, but it is implicit in the provision that such a notice should be issued to give the husband an opportunity to show sufficient cause for non-compliance.
Final Decision: The court set aside the order of imprisonment and directed the Magistrate to hold an enquiry into the petition filed by the wife after giving an opportunity to the husband and to pass an appropriate order in accordance with law.
ORDER :
1. This Criminal revision petition is by the husband against an order directing him to be committed to jail for one month for having failed to comply with the order of the Magistrate directing payment of maintenance allowance to his wife awarded under Section 488 Cr. P.C.
2. It is contended by Mr. Mirza Munawar Ali Baig, learned counsel for the petitioner that the order is not a speaking order and does not give reasons for committing the petitioner to jail and therefore it should be set aside. The order produced by him is one closing the petition filed under Section 438(3) Cr. P.C. which was to issue a warrant for levying the amount due and for sentencing the husband for failing to pay the monthly allowance awarded under Section 488 Cr. P.C. It is not in dispute that the order for paying monthly allowance to his wife was not complied with by the petitioner. It is also not in dispute that a warrant was issued. What is however, contended is that before issuing a warrant, the Magistrate should have issued a show cause notice or at least should have held an enquiry and when the petitioner was brought before the Magistrate, he should have been given full opportunity to explain why he should not be punished for the default alleged to have been committed by him in the payment of arrears of maintenance allowance.
3. Section 488(3) Cr. P.C. under which a warrant was issued for levying the amount due and under which the Magistrate is empowered to sentence the person who has committed the default even after the execution of the warrant to imprisonment reads as follows:
“488(3). 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 here in before provided for levying 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:
Provided that, if such person offers to maintain his wife on condition of her living with him, and she refused to live with him such Magistrate may consider any grounds of refusal stated by her, and may order under this section notwithstanding such offer, if he is satisfied that there is just ground for to doing.
If a husband has contracted marriage with another wife or keeps a mistress it shall be considered to be just ground for his wife's refusal to live with him.
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 levy such amount within a period of one year from the date on which it became due.
(4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or, if, with out any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order was made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order
(6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with in the presence of his pleader, and shall be recorded in the manner prescribed in the case of summons-cases:
Provided that if the Magistrate is satisfied that he is wilfully avoiding service, or wilfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any orders so made may be set aside for good cause shown, on application made within three months from the date thereof.
(7) The Court in dealing with applications under the section shall have power to make such order as to costs as may be just.
(8) Proceedings under
