SOLAI GOUNDER Vs. PERUMAYEE

JUDGEMENT

(1.) In this Revision case the petitioner who has been ordered to pay maintenance at the rate of Rs. 35/ - per mensem to his wife, the Respondent, and her minor son as per the order passed by the learned Sub -Divisional Magistrate of Sankari in M.C. No. 151 of 1968 challenges the order of that learned Magistrate, sentencing him to undergo S.I. for one year for non -payment of the arrears of maintenance amounting to Rs. 1,860/ -

(2.) His grievances are : (1) that the learned Magistrate should have found that the respondent was not entitled to claim arrears of maintenance for a period of 4 years and 9 months, but could only claim one year's arrears of maintenance; (2) that the learned Magistrate did not consider his objection that, since, after the passing of the order directing him to pay maintenance to his wife, the respondent has been living in adultery she was not entitled to enforce the order for maintenance passed in her favour; (3) that the learned Magistrate erred in sentencing him to imprisonment without first issuing a distress warrant for realisation of the arrears by attachment and sale of his properties, and (4) that the lower Court erred in issuing a warrant for his arrest without issuing a notice to him.

(3.) With regard to the first contention, the learned counsel for the petitioner submitted that he was not pressing that objection, for, actually even though in M.C. No. 151/68 an order was passed directing the petitioner to pay maintenance to his wife, the respondent, and her minor son, at RS. 35/ -per mensem from 28th December, 1968, she could not collect the maintenance so awarded since the petitioner filed Crl. M.P. No. 1970 of 1969 and Crl. R.C. No. S.R. No. 32160, dt. 25th August, 1969 and obtained an order which prevented her from collecting the maintenance and when on 7th August, 1972 she filed a petition for recovery of the arrears of maintenance, the petitioner filed a suit O.S. No. 1057 of 1971 for a declaration that, she the respondent, had never married him and that the minor was not a child born to her by him, the petitioner, and obtained an ex parte decree. Since it was entirely due to the fact that the petitioner instituted various proceedings which effectively prevented her from realizing the maintenance awarded to her and arrears of maintenance for 4 years and 9 months have accrued, the petitioner cannot validly contend that in spite of those factors the respondent cannot claim arrears of maintenance for more than a year prior to the filing of her application for enforcement of the order for maintenance.