MYLASWAMI PANDARAM Vs. MUTHAMMAL

JUDGEMENT

(1.) THIS is a petition filed by the husband against the order of the Additional First class Magistrate holding that a protection order by the insolvency Court cannot take away the powers of the magistrate for ordering the petitioner's imprisonment under Section 488, Cri. P. C. for failure to comply with the Court's order.

(2.) THE facts of the case may be briefly stated. The respondent-wife filed a petition M. C. No. 10 of 1961 under S. 488 (1), Cri P. C. on the file of the additional First Class Magistrate, Pollcahi. The Court granted the respondent and her children maintenance of Rs. 60 per mensem. The respondent filed C. M. P. No. 58 of 1963 under S. 488 clause (3) for payment of Rs. 720 being the arrears of maintenance. A warrant was issued by the Court for distress of the petitioner's properties. Again the wife filed C. M. P. 81 of 1963 on 10-6-1963 for a warrant for arrest of the petitioner. A non-bilabial warrant for arrest was issued by the additional First Class Magistrate, Pollachi. While so, the petitioner moved the insolvency Court by filing I. P. No. 10 of 1963 in the Sub Court, Coimbatore. In I. A. No. 130 of 1963, the second additional Subordinate Judge granted an interim injunction from arrest in execution of the order in M. C. No. 10 of 1961 on the file of the Additional First Class Magistrate, Pollachi, till the disposal of the insolvency petition. The respondent was also a party to this application. After the passing of this order, the petition under S. 488 (3) came up before the additional First Class Magistrate. On 1-7-1963, the petitioner appeared before the additional First Class Magistrate, Pollachi, and filed a counter stating that he is immune from arrest by virtue of the order of the civil Court and that he could not be committed to jail for failure to comply with the order in M. C. 10 of 1961. The learned magistrate considered the question whether the order of the insolvency court granting interim protection from arrest in execution of the order in M. C. 10 of 1961 was binding on him and put an end to his powers to commit the respondent to jail even if the failure to pay arrears of maintenance was without sufficient case. The learned magistrate held that the insolvency Court by issuing an order of protection cannot take away the powers of the magistrate for ordering imprisonment of the erring husband under S. 488 (3), Cri. P. A.

(3.) MR. T. R. Ramachandran, learned counsel for the petitioner, submitted that in i. A. 130 of 1963 in I. P. 10 of 1963 the respondent was also a party and the subordinate Judge granted protection against payment of arrears due to the respondent in M. C. 10 of 1961 and the respondent having been a party and not having challenged that order is forbidden form enforcing payment of arrears of maintenance through a criminal Court. It is unnecessary for the purpose of this petition to consider whether the order granting interim protection under Ss. 5 and 23 of the Provincial Insolvency Act is correct or not. The only question for consideration is, taking the order of the insolvency Court as valid, whether the criminal Court is bared form proceeding under S. 488 (3), Cri. P. C.