An order of insolvency does not conclusively establish the husband's inability to pay maintenance under Section 125 of the Cr.P.C., and a protection order under Section 25 of the Insolvency Act does not protect the insolvent from the special statutory power of committal given to a Criminal Court under Section 125 of the Cr.P.C.

This is an application by the insolvent Tarak Chandra Shaw for an order for protection. The petitioner on his own petition was adjudicated an insolvent by an order of the Court dt.30th August, 1982. According to the petitioner his only creditor is one Smt. Mintu Shaw, who has obtained a payment order against the petitioner from the Court of the 3rd Judicial Magistrate, Barrackpore, 24-Parganas whereunder the petitioner had been directed by the learned Court to pay maintenance of Rs.75/- per month to his creditor. For non-compliance of the said order an warrant of arrest had already been issued against the petitioner for non payment of the maintenance. The petitioner had filed already a case against the said Mintu Shaw at Sealdah Court disputing the marriage with the said Smt. Mintu Shaw. Inasmuch as the petitioner is apprehensive of arrest in view of the warrant issued by the Court of the 3rd Judicial Magistrate, Barrackpore, the petitioner has taken out this application for protection.

2. Mr. Pronab K. Chatterjee appeared in support of this application. The creditor in her affidavit affirmed on 25th of January, 1983 stated that she is the wife of the debtor applicant and she opposed this application on the ground that the debtor had made false averments in the petition inasmuch as the husband neglected and refused to maintain the wife and the minor child born out of the wedlock with the applicant. The said Smt. Mintu Shaw filed an application under S.125 of the Criminal P.C. before the 3rd Court of Judicial Magistrate at Barrackpore and obtained an order for maintenance for a sum of Rs.75/- per month. Against the said order the debtor preferred a revisional application before this Court. Mr. Justice Amitava Dutta by an order dt. 1st September, 1981 was pleased to issue a rule and stay of proceedings provided the debtor paid the entire arrears of maintenance in three monthly equal installments, and it was further ordered that in the event of failure to pay installments the rule would be discharged and the stay order would be vacated. Not only the petitioner had given wrong address to obtain the jurisdiction of this Court but also he suppressed material facts in the petition for winding up. According to the deponent the petitioner had been residing outside the jurisdiction of this Court at 126, B.K. Mitra Road, Barranagar, Dist. 24-Parganas. Under the circumstances this Court had no jurisdiction to entertain such application. It had been further contended that the application for protection under S.25 of the Presidency Towns Insolvency Act was not maintainable to defeat the proceedings taken by the wife under S.125 of the Cr.P.C. The deponent further stated in para 5 of her affidavit that not only the debtor applicant has been permanently residing at Barranagar but he also carries on business. He is the owner of a house situated at Kalinath Road, Tantipara, Barranagar as also he had a joint interest in the premises situate at premises No.164, B.K. Mitra Road, Barranagar. Over and above that he is the owner of a wholesale and retail shop at Barranagar. This application is mala fide and had been filed by the debtor to frustrate the order passed by the learned Judicial Magistrate at Barrackpore as also by the learned Judge Mr. Justice Amitava Dutta. Under the circumstances the deponent prayed that no order should be passed on this application.

3. In the case reported in (1940) 41 Cri LJ 785 : (AIR 1940 Mad 697) Penubala Muni Krishnayya v. Penubala Akkul amma it was held:-

"Wording of S.488 (3), Criminal P.C. shows that in every case it is the duty of the Magistrate to find out whether the person ordered to pay maintenance under S.488 has or has not failed without sufficient cause to comply with the order. Neither the protection order under S.23 (1), Prov. Insol. Act nor the adjudication order passed by the Insolvency Court subsequent to the sentence by the Magistrate could be conclusive on this point. The question is one of