1. First Additional District and Sessions Judge Srinagar, has made reference in terms setting aside and modifying orders dated 20/05/1998 and 28/05/1998, passed by the City Munsiff, Judicial Magistrate, Srinagar in 488 Cr. PC. enforcement proceedings where, under, Ghulam Mohammad Mala has been sent to Jail for non-payment of the accumulated maintenance charges of Rs. 50,000/-which the said Ghulam Mohammad Malla was ordered to pay his wife and child. Both Mst. Haleem wife and Gull Adil minor son of Ghulam Mohammad Malla were awarded monthly maintenance of Rs. 400/ - and Rs. 300/- respectively under Section 488 of Cr. P.C. on 04/05/1996 from the date of application namely 08/02/1988. As the said Ghulam Mohd. Malla failed to pay the accumulated maintenance the Munsiff Judicial Magistrate on proper motion passed an order on 20/05/1998 holding husband liable to pay Rs. 50,000/- as arrears of maintenance due to the mother and the child. Since Ghulam Mohd. Malla failed to pay and clear the outstanding and willfully committed default, the Magistrate issued non-baliable warrant and directions to the Superintendent Central Jail, Srinagar to keep him in custody in Jail till he deposits the amount of maintenance or otherwise directed by a competent court of law. The SHO was also directed to execute the warrant and produce the applicant before the court on 25/05/1998.

2. However, the said Ghulam Mohd. Malla was produced before the court on 28/05/1998. The Magistrate passed an order that as Ghulam Mohd. Malla has committed willful default in the payments, therefore committed him to prison for undergoing imprisonment till he liquidates the whole amount of arrears of maintenance.

3. Both these orders were challenged in revision before the District and Session Judge, Srinagar wherefrom the revision was assigned to the court 1st Additional Sessions Judge. The court of 1st Addl. Sessions Judge has dealt with the matter elaborately and reached the conclusion that the direction of the trial Magistrate of committing the husband to prison for indefinite period is not covered by any provision of law and therefore has recommended though some what vaguely in too general terms, for appropriate orders by this court.

4. Record is available. Counsel has been heard and the matter examined.

5. Ghulam Mohd. Malla, husband and father of Haleema and Adil, is in arrears in payment of maintenance. He has not paid maintenance in terms of the orders of Judicial Magistrate in proceedings under Section 488 Cr. P.C. which have accumulated to Rs. 50.000/-. It is not also disputed by the counsel for the parties that the Magistrate has the power and authority to sentence a defaulter/ husband to imprisonment for at least one month for the whole or part of each months allowance which has remained unpaid after the execution of the warrant unless payment is made earlier. The question in this case is whether the Magistrate could sentence the defaulting husband to imprisonment for an indefinite period or to a term coextensive with payment or deposit thereof in court.

6. The counsel for the wife and child submits that the impugned order of the trial Magistrate of putting the husband in jail for an indefinite term cannot be disturbed in view of the law laid down by the Apex Court in the case of Smt. Kuldeep Kour vs. Surinder Singh and Anr. (AIR 1989 SC 233), as the husband has willfully failed to pay the maintenance charges granted by the Magistrate. The counsel for husband, submits that the husband cannot be put behind the bars indefinitely but is to be dealt with in accordance with the provisions of Section 488 Cr. P.C. (Corresponding to Section 125 of Cr. P.C. elsewhere in the country) even if default is proved though the husband has even before the court of reference submitted that he is prepared to pay maintenance amount but in instalments.

7. In the case of Smt Kuldip Kour (Supra) the Supreme Court rejected the plea of the husband that having undergone the jail term for no

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