The husband bears the burden of proving sufficient cause for non-compliance with a maintenance order under Section 488 of the Criminal Procedure Code.

1. This reference made by the learned Sessions Judge of Junagadh in respect of a proceeding falling under S.488 (3) of the Criminal Procedure Code 1898, (hereinafter referred to as the Code) has raised a pointed question. That question is whether husband has to prove sufficient cause for not complying with the order of monthly allowance passed under sub-section (1) of S.488 or wife has to prove absence of sufficient cause before the order is enforced by way of arrest and detention of husband in jail under sub-section (3). This question has arisen in the following facts of this case : -

2. The wife obtained an order for monthly allowance at the rate of Rs. 30/-against the husband payable to her from 1-7-1968. Direction to pay this monthly allowance was not complied with for a period of 12 months. Therefore, on 15-7-1969, the wife gave an application to the learned Magistrate stating that the total arrears of monthly allowance payable to her for a period of 12 months are Rs. 300.00 P. and that this is the amount of arrears from 1-7-1968 to 30-6-1969 and this amount was not paid by the husband. She, therefore, prayed for realisation of this amount along with 0.65 Paise as the amount of Court - fee Stamp affixed on the application. On this application, the learned Magistrate issued notice to the husband to show cause. The husband appeared but did not show any cause. Therefore, on 10-10-1969, the learned Magistrate passed the following order : -
"The opponent is present. He does not file any objection. He has not paid the amount and hence J. warrant be issued. 10-10-1969"
It appears that the learned Sessions Judge understood the term "J. warrant" employed in the aforesaid order to mean jail warrant and on that basis, he observed in the order of Reference while narrating facts as under in para 3 : -
"In pursuance to this notice, the applicant put in his appearance but did not file any reply, and, consequently, on 10-10-1969 the learned Magistrate passed an order for issue of arrest warrant, as no reply was filed by the applicant and no arrears were deposited."
Perusal of record would have shown that no warrant of arrest was issued by the learned Magistrate on 10-10-1969. What he issued was distress warrant or warrant of attachment of moveables and that warrant is on the record at Ex. 3. That warrant was for a sum, of Rs. 360/- being the arrears of maintenance for 12 months. By J. warrant the learned Magistrate meant Jangam warrant.

3. In the course of attempt to execute this warrant, the police head - constable entrusted with execution thereof, made attempts to find out properties of the husband. He found that there was no property belonging to the husband in the village. Therefore, he returned that warrant with his endorsement, dated 11-11-1969. The learned Sessions Judge in making his order of reference has observed another fact which again does not appear to be correct. He says in para 4.
"In between the presentation of the application on 15-7-1969 and the passing of the aforesaid order on 10-10-1969 the learned Magistrate had asked for the police inquiry to know, whether the applicant possessed adequate means and whether he, in spite of having possessed means, was wilfully neglecting to maintain and to evade payment of maintenance."
He has not referred to any order passed by the learned Magistrate for this inquiry. It is not possible to find from the record also that any such inquiry was ordered between 15-7-1969 and 10-10-1969. This impression of the learned Sessions Judge was possibly created on account of the report of the head constable below the distress warrant which contains certain facts about his having made inquiry about the property of the husband. But then, that inquiry was in the course of execution of the Jangam warrant itself and not