Order.- The revision petitioner, sentenced by the learned Additional First-Class Magistrate, Nedumangad, for simple imprisonment for three months under section 488 (3) of the Code of Criminal Procedure, as per the order in each of the two petitions filed by the respondent herein, who is the wife of the revision petitioner, for executing an order of maintenance under section 488, (1) Criminal Procedure Code obtained by her against the husband, challenges the validity of those orders in this revision.

2. Sri B. Raghunathan, the learned Counsel for the revision petitioner, submits that the impugned orders are neither in accordance with the provisions of section 488, Criminal Procedure Code nor in tune with the well accepted principles of natural justice.

3. It is not in dispute that the Court had directed the revision petitioner who is stated to be a N.M.R. worker to pay maintenance to his wife (respondent herein). The respondent had filed C.M.P No. 873 of 1972, dated 29th May, 1972 and C.M.P. No. 607 of 1973, dated 15th June, 1973 claiming arrears of maintenance for the period from nth April, 1971 to nth May, 1972 and 11th June, 1972 to 11th April, 1973 from the revision petitioner. In pursuance of the non-bailable warrant issued by the Additional First-Class Magistrate, the revision petitioner was produed in Court on 28th June, 1973. By separate orders in the said petitions referred to above, the Magistrate sentenced the revision petitioner to undergo simple imprisonment for three months for failure to pay maintenance for the respective periods, on the further condition that the term of imprisonment would come to an end if payment is made earlier as provided under section 488 (3), Criminal Procedure Code.

4. The contention of the learned Counsel is that the order issuing warrant, passed without first issuing notice to the revision petitioner and without holding an enquiry, is illegal. It is pointed out that the provision in section 488 (3) that the Magistrate may issue a warrant notwithstanding the husband’s offer to maintain his wife is an indication that the issue of warrant could be ordered only after hearing the person against whom the order of maintenance is sought to be enforced. It is also argued that the previsions contained in sub-section (6) to section 488, Criminal Procedure Code also contemplate, if not expressly at least impliedly, that there should have been a notice to the husband before the issue of warrant.

5. I find considerable force in this argument. For one thing, the principles of natural justice require that a man should be allowed to show cause why drastic steps like issue of non-bai!able warrant and further steps, if any, required according to law should not be taken against him for the alleged failure on his part to pay maintenance to his wife. Issue of warrant for levying the amount clue from the person against whom an order of maintenance under section 488 (1), Criminal Procedure Code has been passed, would arise only if he fails without sufficient cause to comply with such order in terms of section 488 (3). The proviso to subsection (3) to section 488 makes it clear that:

“.......... if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing ........”

This would again mean that the offer to maintain his wife on condition of her living with him could be made by the revision petitioner only if he gets a notice regarding the action proposed to be taken against him. In this case no such opportunity to show cause why warrant should not be issued against him has been given by the Magistrate. Sub-section (6) to section 488, Criminal Procedure Code lays down that-

“All evidence under this Chapter (Chapter XXXVI) shall be taken in the presence of the husband or father,

Click Here to Read the rest of this document