IMPORTANT POINT
A sentence of jail is no substitute for the recovery of the amount of monthly allowance awarded under section 125, Criminal Procedure Code, 1973, which has fallen in arrears. The order for maintenance can be discharged only upon the amount being recovered in fact.

JUDGMENT

Thakkar, J. - We have yet to come across a case of a wife wronged by her husband and a child wronged by his father who had to suffer also at the hands of the Court. For, while the Trial Magistrate has disposed of the matter in a very cursory manner taking a thoroughly untenable and unjust view, the High Court has rejected the Revisional Application summarily. Both the Courts have done so notwithstanding the fact that the point involved (whether detaining the husband in jail for failing to pay the arrears of maintenance would be tantamount to satisfaction of the order of maintenance passed in her favour even though the arrears of maintenance allowance remain unrecovered in fact) is not capable of being answered against the petitioner.

2. The Metropolitan Magistrate (Shri L.D. Malik) in his order dated July 4, 1981 recorded a clear finding that the husband was guilty of cruelty in the context of the demand for dowry. He observed:

"I have heard the attorney for the petitioner and carefully examined the evidence produced by the petitioner and find that the evidence on record is sufficient to show that the petitioner was maltreated and neglected by the respondent. The evidence on record indicates that the petitioner was maltreated and neglected by the respondent. The evidence on record indicates that the petitioner was maltreated on account of less dowry and was not looked after properly during the course of her advance stage of pregnancy. The evidence also indicates that the respondent did not bother about the petitioner having given birth to a male child. The statements of the witnesses which include that of the petitioner and her father are unrebutted by any evidence on behalf of the respondent and the averments of the respondent in his reply are unsupported by any evidence since the respondent did not produce any evidence having been proceeded ex parte on account of his absence. The cross-examination of the witnesses of the petitioner also does not reveal anything so as to support the allegations of the respondent in his reply."

In the context of this finding a sum of Rs. 200/- to the wife and Rs. 75/- to the son were awarded by the aforesaid order.

3. The respondent-husband was in arrears to the tune of Rs. 5090/-. The wife moved an application for execution of the order for maintenance in order to recover the arrears of maintenance. In the course of enforcement of the order of maintenance dated 17-1-1982 the husband was sentenced to suffer simple imprisonment for one month pursuant to the order dated 17-1-1982 of the Metropolitan Magistrate (Shri L.D. Malik). The operative portion of the order reads as under:

"The J. D. Surinder Singh, s/o Bhagwan Singh is accordingly sentenced to S.I. for one month and shall be released if he makes payment of Rs. 5090/- as maintenance due from him upto 16-1-1982. Both the execution files pending are disposed of accordingly except that payment of Rs. 400/- remains to be paid to D.H. who shall appear personally for obtaining the amount."

The wife prayed for recovery of the arrears, whereupon the Metropolitan Magistrate rejected her prayer on the ground that the claim for arrears stood satisfied upon the husband having been sent to jail. Says the Metropolitan Magistrate:

"The J. D. was sentenced to Jail for one month and the order of the court dated 17-1-1982 are material to be mentioned here vide which it has been decided that the J.D. was sentenced for non-payment of maintenance allowance Rs. 5090/- due from him upto 16-1-1982. The J. D. remained ill custody for one month and as per orders dated 17-1-1982 sum of Rs. 5090/- stands satisfied. As per orders of the court, the J.D. was directed to pay Rs. 400/- remaining amount. This amount was paid on 19-1-1982 by the J.D. to the decree-holder."

The wife who wanted the maintenance amount for maintaining herself and the minor child approached the High Court by way of a revisional application. Naturally the need of the wife for a few crumb