SETH, J. :-This criminal reference has come up before us on a reference made by D. D. Seth, J. as he thought that there was conflict between the opinions of Mulla, J, and Desai, J., on the point involved in this case, as expressed by them in the cases of Ram Kishore v. Smt. Bimla Devi, AIR 1957 All 658 and Ramji Malviya v. Smt. Munni Devi, AIR 1959 All 767.

2. Facts giving rise to this reference are that on 21st of June, 1966, the City Magistrate Allahabad made an order under Section 488 (1), Criminal P. C. directing Noor Mohammad (hereinafter referred to as the opposite party) to pay maintenance to his wife Smt. Mehrunnisa (hereinafter referred to as the applicant) at the rate of Rs. 40/-per month. The order was made on the finding that as the applicant became incapable of bearing children, opposite party illtreated her and turned her out of his house. The applicant had sufficient reason to live away from her husband and the opposite party had sufficient means to maintain her, but he refused and neglected to do so.

3. The opposite party filed an application in revision before the Sessions Judge, Allahabad and obtained a stay order on 16th October, 1966. The stay order was, however, vacated on 6th of May, 1967. A revision application was then filed before this Court, which was also dismissed on 8th November, 1967. In spite of the dismissal of revision applications the opposite party did not pay the maintenance allowance. The applicant therefore, moved an application dated 9th of January, 1968, under Section 488 (3) of Criminal P. C. praying that the salary of the opposite party be attached and he be arrested for recovering the arrears of maintenance due to her for the period 21st June, 1966 up to date.

4. On 20th January, 1968. the Magistrate made an order for issue of realisation warrant and notice, in respect of four months' maintenance allowance and fixed 6th February, 1968, for further orders. The record, however, shows that the notice issued to the opposite party required him to pay Rs. 240/- as arrears of maintenance for six months and it was also mentioned therein that if he failed to pay the amount necessary warrant under Section 488 (3), Criminal P. C. would be issued against him. On 6th of February, 1968, the opposite party did not appear before the Court and the Magistrate made an order directing issue of warrants to the Station Officer Tundla to attach moveable property of the opposite party worth Rs. 480 (12 months' maintenance) and in case no property was available to arrest him and produce him before the Court. The opposite party appeared before the Court on 12th of February, 1968, and stated that the notice issued to him was served upon him on 10th February, 1968, through the Divisional Superintendent, Northern Railway, and that he was arrested on that date by a police constable saying that there was a warrant for his arrest. The opposite party contended that in case he had been arrested in connection with the payment of maintenance he would pray for sometime, so that he may arrange the money and pay the maintenance amount as he had no ready cash with him at that time. The Court thereupon directed him to pay the maintenance amount within a week and fixed 22nd February, 1968, for further hearing in the case. He was also directed to be released on his executing a personal bond for Rs. l,000/-.

5. On 20th February, 1968, the opposite party moved another application stating that after the order dated 21st June, 1966, made by the Magistrate directing payment of maintenance, he filed a revision application against the said order before the learned Sessions Judge, Allahabad, who admitted it and stayed payment of maintenance allowance. The learned Sessions Judge, however directed the opposite party to deposit the arrears of maintenance and ordered that the application in revision would be heard only if the arrears were deposited. The opposite party had gone up in revision before the High Court, which became infruc