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PATNA HIGH COURT
G.N.Prasad and S.Wasiuddin JJ.
Gupteshwar Pandey
Versus
Ram Peari Devi
Criminal Miscellaneous No. 1725 of 1969 ;
Decided On : APRIL 22, 1970
CRIMINAL PROCEDURE CODE - SECTION 488 - MAINTENANCE - HUSBAND'S APPLICATION TO QUASH PROCEEDING - GROUNDS - CONSTITUTIONALITY OF SECTION 488 - LIMITATION - SUFFICIENCY OF CAUSE FOR NON-COMPLIANCE WITH ORDER - REVIVAL OF PROCEEDING AFTER CLOSURE - HELD: (1) SECTION 488 IS NOT ULTRA VIRES ARTICLES 14 AND 15 OF THE CONSTITUTION. (2) CLAIM FOR MAINTENANCE NOT BARRED BY LIMITATION. (3) SUFFICIENCY OF CAUSE FOR NON-COMPLIANCE WITH ORDER CANNOT BE THE SAME CAUSE WHICH COULD HAVE BEEN RAISED AT THE STAGE OF PASSING THE ORDER. (4) MAGISTRATE HAS JURISDICTION TO REVIVE PROCEEDING WHICH HAD BEEN CLOSED.
Fact of the Case:
Husband filed an application to quash a proceeding under Section 488 of the Code of Criminal Procedure initiated by his wife for maintenance. The husband challenged the constitutionality of Section 488, claiming it was discriminatory against men. He also argued that the claim for maintenance was barred by limitation and that the proceeding was continued without disposing of his objection petition. Additionally, he contended that the magistrate had no jurisdiction to revive the proceeding after it had been closed.
Finding of the Court:
The court held that Section 488 of the Code of Criminal Procedure was not ultra vires Articles 14 and 15 of the Constitution as it was a special provision for the benefit of deserted women and children. The court also held that the claim for maintenance was not barred by limitation as the amount became due only after the order of maintenance was passed. Furthermore, the court held that the magistrate was not required to dispose of the husband's objection petition before proceeding with the enforcement of the maintenance order as the objections were of the same nature that could have been raised at the stage of passing the initial order. Lastly, the court held that the magistrate had jurisdiction to revive the proceeding after it had been closed as the proceeding had not been dropped or finally disposed of.
Issues: 1. Whether Section 488 of the Code of Criminal Procedure is ultra vires Articles 14 and 15 of the Constitution? 2. Whether the claim for maintenance is barred by limitation? 3. Whether the proceeding was continued without disposing of the husband's objection petition? 4. Whether the magistrate had jurisdiction to revive the proceeding after it had been closed?
Ratio Decidendi: 1. Section 488 of the Code of Criminal Procedure is not ultra vires Articles 14 and 15 of the Constitution as it is a special provision for the benefit of deserted women and children. 2. The claim for maintenance is not barred by limitation as the amount became due only after the order of maintenance was passed. 3. The magistrate was not required to dispose of the husband's objection petition before proceeding with the enforcement of the maintenance order as the objections were of the same nature that could have been raised at the stage of passing the initial order. 4. The magistrate had jurisdiction to revive the proceeding after it had been closed as the proceeding had not been dropped or finally disposed of.
Final Decision: The husband's application to quash the proceeding was dismissed.
G.N.Prasad, J.
1. This is a husbands application arising in a proceeding under Sec. 488 of the Code of Criminal Procedure.
2. The opposite party, Smt. Ram Peari Devi filed an application under Section 488(1) of the Code before the Subdivisional Magistrate at Arrah on the 27th April, 1959. That application, after contest, was allowed on the 5th of December, 1960 and it was directed that the petitioner must pay a sum of Rs. 75/- per month to the opposite party on account of her maintenance with effect from the date of her application, namely, the 27th April, 1959. Against the said order, the petitioner moved the sessions court in revision but the revision was summarily rejected by the Sessions Judge on the 17th of January, 1961.
Thereafter on the 10th May, 1961, the opposite party filed an application for realisation of a sum of Rs. 1800.00 from the petitioner in pursuance of the order passed in her favour on the 5th December, 1960. Notice of this application having not been served on the petitioner in the ordinary course, an order for issue of distress warrant was passed against him on the 17th August, 1961. This was followed by an order of attachment of the joint family properties of the petitioner which was passed on the 25th June, 1962. But on the 24th July, 1962 the father and the brothers of the petitioner appeared before the Subdivisional Magistrate with a prayer for release of the joint family properties from attachment. The said petition was rejected on the 30th July, 1962, whereupon the father and the brothers of the petitioner moved the Sessions Judge for a reference to this Court. Accordingly, a reference was made by the learned Additional Sessions Judge and it was registered in this Court as Criminal Reference No. 15 of 1963. On the 8th August, 1963, the reference was accepted by this Court, the order of the Sub-divisional Magistrate dated the 30th July, 1962 was set aside and it was held that the joint family properties of the petitioner could not be proceeded against in the proceeding under Sec. 488 of the Code of Criminal Procedure.
3. After the record of the case was returned by this Court to the Sub-divisional Magistrate, the petitioner appeared before him and filed a petition in which he prayed that the proceeding which was being taken against him should be dropped on the ground that he had no property or any source of income of his own. No order, one way or the other, was passed upon this petition of the 2nd January, 1964, but on the 17th February, 1964, the Sub-divisional Magistrate passed an order for attachment of certain properties which were alleged, on behalf of the opposite party to be the separate property of the petitioner. Nearly four years elapsed thereafter without any tangible result and on the 27th January, 1968, an execution report was received from the police to the effect that the petitioner was not in possession of any separate property. Thereupon the Sub-divisional Magistrate took the view that there was no alternative left except to issue a warrant of arrest against the petitioner under the provisions of Sec. 488(3) of the Code. Even thereafter for several dates the execution report of the warrant of arrest was not received in court. Ultimately on the 27th June, 1968, the Sub-divisional Magistrate recorded the following order:-
-
"Petitioner -- absent. O. P. It appears that the petitioner has given up the claims for certain reasons. Hence the proceeding is closed." On the 10th July, 1968, however, the opposite party filed a petition before the learned Subdivisional Magistrate in which she explained the reason for her absence from Court on the 27th June, 1968 and asked for the revival of the proceeding. This prayer of the opposite party was allowed on the 29th July, 1968 on which date following order was passed:-
- "The proceeding is revived at the prayer on behalf of the petitioner. Issue w/a non-bailable against O. P. Gupteshwar Pandey under Sec. 488(3) Cr. P. C. To 29-8-68."
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