The judicial discretion of the Magistrate in considering 'sufficient cause' for non-compliance with a maintenance order under Section 488 of the Criminal Procedure Code is crucial and should not be limited by definite rules.

Srinivasa Aiyangar, J.

1. The order of the Sub-divisional Magistrate of Tuticorin, dated 23rd March, 1924, directing the execution of the order for maintenance was clearly wrong and should be set aside. The counter-petitioner before the Magistrate, who is the petitioner before me, filed a counter-petition presumably under Sub-clause (3) to Section 488 of the Criminal Procedure Code setting out certain grounds on which he contended that the order should not be executed. The words in Sub-clause (3) of the section as now amended are, "If any person so ordered fails, without sufficient cause to comply with the order, etc." These words clearly contemplate a counter-petitioner in such circumstances coming into Court when execution of the order is applied for and showing cause why it should not be executed. The Court is then bound to consider the sufficiency of the cause alleged by the counter-petitioner and to refuse the execution if the Court should be satisfied that the cause is sufficient and to grant execution if the Court is not satisfied with the cause alleged. It is contended by the learned vakil for the respondent that having regard to the terms of Sub-clause (5) to Section 488 of the Code of Criminal Procedure, it is not open to any counter-petitioner who has not had the order against him set aside under that sub-clause to come under Sub-clause (3) and seek to show any sufficient cause against the execution of the order. But it seems to me that such a construction would involve the Court not giving effect to the clear words contained in Sub-clause (3), namely, "failing without sufficient cause." I am therefore clearly of opinion that the Sub-Divisional Magistrate erred in summarily ordering execution without considering the grounds set out in the counter-petition. I do not want to prejudice either party by any expression of opinion with regard to what would or would not constitute sufficient grounds within the meaning of Sub-clause (3) of the section. The Legislature has deliberately used the expression "sufficient cause" obviously intending that the Magistrate before whom the matter comes up should be in a position to use his judicial discretion having regard to all the circumstances and that such judicial discretion should not be festered or limited by any definite rules. The learned vakil for the respondent submitted that if after an order under the section had been made and when execution of the order is sought by the petitioner, the counter-petitioner would not be entitled to come to the Magistrate and say that he was then willing to take back the petitioner and maintain her and contend that, that would be sufficient cause within the meaning of Sub-clause (3). But as I have already observed whether in the circumstances of the particular case such a contention would or would not be sufficient cause must be determined judicially by the Magistrate himself. If, for instance, the original order had been made on the ground of the refusal of the counter-petitioner to maintain the petitioner, then the offer of the counter petitioner to maintain the petitioner may be sufficient cause; but if the original order for maintenance had been made in spite of the offer of the Counter-petitioner to maintain her then obviously the mere offer of the counter petitioner to maintain her would not in the circumstances be a sufficient cause. I have referred to these matters only by way of illustration. The expression "sufficient cause" is wide enough to include all possible considerations that may be submitted to the Magistrate in such circumstances.

2. I therefore set aside the order of the Sub-divisional Magistrate directing the execution of the order and I direct that the application for execution and the counter-petition be taken on the file and be heard and disposed of by the Magistrate in the light of the observations I have made.