NEMCHAND Vs. SHRIMATI KUSUM BAI

JUDGEMENT

(1.) THE short question that arises in this revision is whether the Magistrate should stay the recovery of the amount of maintenance granted under section 488 (1) of the Code of Criminal Procedure when, while seeking to execute the maintenance order under sub-seetion (3) of section 488, an objection was raised by the opposite party as to the entitlement of the wife to claim maintenance on the ground that she was leading an adulterous life.

(2.) THE non-applicant Kusum Bai was granted a maintenance allowance at the rate of Rs. 40 per month under section 488 (1) of the Code of Criminal procedure. She applied for recovery of arrears of maintenance under subsection (3) of section 488. The applicant resisted the execution on the ground that the non-applicant was living in adultery and urged that the recovery should be stayed pending decision on his objection. The learned Magistrate ordered that the arrears of maintenance amounting to Rs. 480. 00 for the period from 26-3-1969 to 26-3-1970 be paid to the non-applicant and that the ground raised by the applicant as to why the non-applicant should not be paid the maintenance be inquired into. The order of the Magistrate was challenged in revision and the learned Sessions Judge dismissed the same. The revision is against the order of the Magistrate as also the order of the Sessions Judge refusing to interfere with the order of the Magistrate.

(3.) THE point involved for consideration in this case is as to the powers of the learned Magistrate to grant interim stay pending inquiry into the objection raised by the other side when the execution of the maintenance allowance was started under sub-section (3) of section 488 of the Code. The High Courts have taken divergent views as to the scope of sub-section (3) of section 488 and the proviso under it. In the instant case, the non-applicant has been granted maintenance under section 488 (1 ). It was found that the applicant contracted a second marriage and thus neglected and refused to maintain his first wife, the present non-applicant. Under sub-seetion (2), the maintenance amount became payable from the date of order and the applicant being in arrears, the non-applicant had applied for execution under sub-seetion (3) of section 488. It was now tried to be urged that the non-applicant was living in adultery and thus not entitled to receive maintenance allowance. This objection is raised on the assumption that under sub-section (3) he could be permitted to raise all those grounds which he had raised earlier by which he could seek to establish the disentitlement of the non-applicant to the maintenance allowance. The applicant further prayed before the learned Magistrate as also before this Court that since the Court was bound to enquire into the allegations of adultery, the execution should be stayed pending inquiry into the allegations as if eventually he was successful in establishing the grounds, no remedy had been provided under the Code to recover the amount already paid. Therefore, it was urged that in the interest of justice and on considerations of balance of convenience, the Court inquiring into such allegations must stay the proceedings.