M. SORE Vs. TAIYAINAYAKI

JUDGEMENT

(1.) THIS case raises a very important and interesting question of law as to whether a person can claim protection against an order of imprisonment passed by a Criminal Court under S. 125(3) of the Code Criminal Procedure, for non -payment of arrears of maintenance, on the ground that he has been adjudged an Insolvent in an Insolvency Court.

(2.) THE brief facts of the case are as follows: The respondent herein filed a petition, under S. 125 of the Criminal Procedure Code against her husband (petitioner herein) in M C, 2699 of 1974 before the III Metropolitan Magistrate, Madras, seeking an order of maintenance for herself and for her minor child on the ground that she is legally wedded wife of the petitioner who is a driver in the State Transport Service drawing a monthly salary of Rs. 400/ - odd and the child was born of the wedlock, and that the petitioner had ill -treated her and neglected to maintain herself and the child. She has also alleged that the petitioner is keeping a concubine by name Yasammal. The petitioner herein remained absent in the proceedings in spite of repeated notices and allowed the same to proceed ex -prate. Hence, on 25th March, 1975, the learned Magistrate examined the respondent herein as P. W. 1 and ordered maintenance to be paid by the petitioner at the rate of Rs. 35/ - per mensem for the respondent and at Rs. 20/ - per mensem for the child. Subsequently, in December, 1978, the respondent filed M. P. No. 3557 of 1978 under S. 125(3), Crl. P. C., for necessary action on the ground that the petitioner had committed breach of the order, in that be had not paid the maintenance for a period of 11 months, which amounted to Rs. 605/ - as on 1st December, 1978. The petitioner filed a counter in the above miscellaneous petition, stating that the respondent is not his wife and that the ex parte order was obtained while he was under remand in connection with a motor accident and that he has lost his job.

(3.) THE only contention that has been raised before me by S.N. Amarnath, learned counsel for the petitioner, is that the petitioner has been adjudicated an insolvent on 13th October, 1979 as per order in Application No. 559/79 in I.P. No. 32 of 1979 and that the amount of the arrears of maintenance payable by him to the respondent has been shown in the schedule of debts owed by him in the insolvency application, and therefore the consequential protection given to him by the Insolvency Court against arrest would cover also the maintenance amount due by him to the respondent and accordingly the order of arrest for non -compliance with the maintenance order is not sustainable.