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IN THE HIGH COURT OF ALLAHABAD
Mulla, J.
RAM KISHORE - Appellant
Versus
BIMLA DEVI - Respondents
Criminal Revn. 189 Of 1956
Decided On : 01/09/1957
CRIMINAL PROCEDURE CODE - SECTION 488 - MAINTENANCE - WIFE LIVING IN ADULTERY - HUSBAND'S OBJECTION TO EXECUTION OF MAINTENANCE ORDER - INTERPRETATION OF SECTION 488(3) AND (4) - APPLICABILITY OF RES JUDICATA - SCOPE OF INQUIRY UNDER SECTION 488(3) - DISTINCTION BETWEEN FAILURE TO COMPLY AND REFUSAL TO COMPLY - HUSBAND'S OBLIGATION TO MAINTAIN WIFE UNTIL SHE CONTRACTS ADULTEROUS RELATIONSHIP - AVAILABILITY OF REMEDY UNDER SECTION 488(5) FOR CANCELLATION OF MAINTENANCE ORDER.
Fact of the Case:
The applicant, Bam Kishore, challenged the execution of a maintenance order granted to his wife, Bimla Devi, and their child, claiming that Bimla Devi was living in adultery and refusing to live with him without sufficient reason. The Magistrate dismissed the applicant's objection, holding that it was mala fide and that even if Bimla Devi was living in adultery, there was no justification for not paying the maintenance awarded to her until she contracted any adulterous relationship.
Finding of the Court:
The court held that the phrase "fails without sufficient cause to comply" in Section 488(3) of the Criminal Procedure Code (Cr.P.C.) does not include contentious pleas, but only circumstances that show that the order has exhausted itself. The court further held that the husband cannot be permitted to decide a contention in his own favor and then disobey the order of the court, and that such a plea cannot be heard under Section 488(3) of the Cr.P.C. The court also held that the principle of res judicata applies to proceedings under Section 488 of the Cr.P.C., and that once an order of maintenance has been passed, it remains in force until it is cancelled under Section 488(5) or altered or modified under Section 489 of the Cr.P.C.
Issues: 1. Whether the husband can challenge the execution of a maintenance order on the ground that the wife is living in adultery and refusing to live with him without sufficient reason. 2. Whether the husband can raise contentious pleas under Section 488(3) of the Cr.P.C. to justify his failure to comply with the maintenance order. 3. Whether the principle of res judicata applies to proceedings under Section 488 of the Cr.P.C.
Ratio Decidendi: 1. The court held that the husband cannot challenge the execution of a maintenance order on the ground that the wife is living in adultery and refusing to live with him without sufficient reason, as this amounts to a refusal to comply with the order and not a failure to comply. 2. The court held that the husband cannot raise contentious pleas under Section 488(3) of the Cr.P.C. to justify his failure to comply with the maintenance order, as this would defeat the purpose of Section 488 of the Cr.P.C., which is to provide a speedy remedy for neglected wives and children. 3. The court held that the principle of res judicata applies to proceedings under Section 488 of the Cr.P.C., and that once an order of maintenance has been passed, it remains in force until it is cancelled under Section 488(5) or altered or modified under Section 489 of the Cr.P.C.
Final Decision: The court dismissed the applicant's revision application and upheld the Magistrate's order dismissing the applicant's objection to the execution of the maintenance order.
( 1 ) SHRIMATI Bimla Devi, wife of the applicant Bam Kishore, claimed maintenance from him. The magistrate awarded maintenance to her as well as her child, although the applicant had contested her claim. The applicant went up in revision, but his revision application was also dismissed. Bimla Devi then filed an application for the recovery of the arrears of maintenance which had been awarded to her and her son. Notice was issued to the applicant and he contested this application again on the grounds that Bimla Devi was refusing to live with him without sufficient reason and was living in adultery. He therefore, prayed that Bimla Devis prayer should be rejected and no distress warrant should be issued against him.
( 2 ) THE learned Magistrate came to the conclusion that the objection filed by the applicant was mala fide and was lodged only to delay the execution of the order passed against him. It may be mentioned here that the applicant had not taken the plea of his wifes adultery when the main case was contested. The Magistrate also held that even if it foe accepted that Bimla Devi is living in adultery, there was no justification for not paying the maintenance legally awarded to her upto the time when she contracted any adulterous relationship. In his opinion no retrospective effect could be given to an order and so he did not reopen the inquiry and dismissed the objection filed by the applicant. He, however, observed that if the objection of the applicant was meant to be an application for the cancellation of the order of maintenance, it can be filed separately under section 488 (5 ). Cr. p. C.
( 3 ) THE applicant went up in revision against this order. It was contended on his behalf that under clause (3) of Section 488, Cr. P. C. , he was entitled to show cause why he failed to comply with the order passed against him and, therefore, as Bimla Devi was living in adultery and was also keeping away without any justifiable reason, it was the duty of the Magistrate to enquire into the matter. This contention was not accepted by the learned Sessions Judge and he confirmed the order passed by the Magistrate.
( 4 ) THE applicant then came up in revision before this Court and the same contention has been pressed before me.
( 5 ) THE relevant part of Section 488, Cr. P. C. runs as follows :-
"subsection (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each months allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: provided 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; (If a husband has contracted marriage with another wife or keeps a mistress it shall be considered to be just ground for his wifes refusal to live with him. ). . . . . . . . . .
(4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order. " It would thus appear that in Sub-section (5) it is specifically mentioned that the order passed against the husband can be cancelled if any of the three causes mentione
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