SM. KALYANI DEBI Vs. NIRMAL KUMAR PANDA

JUDGEMENT

(1.) THIS is a reference under Section 438, Criminal P. C. by the Additional Sessions Judge of Midnapore recommending that an order of a Magistrate directing the petitioner to pay the arrears of maintenance of Rs. 400/ - by a certain date and further directing issue of a distress warrant in default of payment of the arrears by that date be set aside, and the learned Magistrate be directed to hold an inquiry into the question whether the opposite party, who is the wife of the petitioner, was living a life of adultery and whether the order allowing maintenance at the rate of Rs. 25/ - per month to the wife and the child should be cancelled on that ground.

(2.) KALYANI Debi is admittedly the wife of Nirmal Kumar Panda. She claimed maintenance from her husband on 6 -2 -1951.The learned Magistrate allowed her maintenance at the rate of Rs. 25/ - per month from the date of her application i.e. from 6 -2 -1954. He also allowed maintenance to the only child of the marriage at the rate of Rs. 10/ - per month from the date of the wife's application. The order of the Magistrate was passed on 13 -12 -1954. This Court by an order dated 10 -5 -1955 modified the order of maintenance to this extent that Rs. 25/ - was payable to the wife and the child together per month from the date of the wife's application to the Magistrate. On 22 -6 -1955 the wife filed an application before the Magistrate claiming arrears of maintenance to the extent of Rs. 400/ -. To this the husband objected saying that the wife was living a life of adultery in her father's house, and as such she was not entitled to recover any maintenance. The learned Magistrate did not go into the question at all on the ground that that question had been already gone into in connection with the wife's application for maintenance and it could not be reagitated. The learned Judge thinks that the husband was entitled under the provisions of Section 488(3), Criminal P. C. to raise the objection that the wife was living a life of adultery when the wife claimed to recover the arrears of maintenance, for this would amount to sufficient cause within the meaning of the phrase 'without sufficient cause' in Sub -section (3) of Section 488, Criminal P. C. The learned Judge accordingly thinks that the Magistrate should go into this question and decide the question whether the wife was entitled to recover the arrears of maintenance on the basis of the decision of the question whether the wife was living a life of adultery. The husband also applied for cancellation of the order of maintenance on the ground that the wife was living a life of adultery, and that also should be inquired into, according to the learned judge.

(3.) THE position in law, therefore, seems to me to be this that where an order of maintenance is cancelled, there is nothing to enforce and nothing can be enforced. There is thus no question of his enforcing the order and there is also no question of his executing the order for arrears of maintenance.