RAGHMAIL SINGH Vs. SATWANT KAUR

JUDGEMENT

(1.) THE respondent was granted maintenance against the petitioner under section 488 of the Old Criminal Procedure Cede which is analogous to section 125 of the Criminal Procedure Code in force at present. As the amount of maintenance was not payed, the respondent filed 5 applications for executing the order regarding maintenance, apparently for different periods though it is not clear from the order of the Magistrate or the Sessions Judge. The petitioner filed objections in all these 5 applications challenging the maintainability of the order of maintenance on the ground that the respondent was living in adultery; that she was absconding from his company without any valid or reasonable ground in spite of his repeated efforts. The Magistrate dismissed all the objections on the ground that the order (of maintenance had to be executed and complied with so long it was not got cancelled and that even the order of cancellation will have no retrospective effect. This order having been challenged in revision by the petitioner, the learned Sessions Judge by his order dated February 4, 1975, upheld the order of the Magistrate and consequently dismissed the revision petitions. It is against this order that the present revision petition has been filed.

(2.) IT has been vehemently contended by Mr. R. L. Sharma, the learned counsel for the petitioner, that Mt. Bhag Sultan vs. Muhammad Akbhar Khan, A I.R. 1930 Lahore 99(1) which has been relied upon by the courts below does not lay down good law and that the ratio of the decision in Sangavva Gulappa Khandekar vs. Gulappa Kariyeppa Khandekar A.I.R.(29) 1942 Bombay 258, should be followed. It was a also, contended that the Lahore High Court while interpreting sub -section l4; of section 488 of the Code of Criminal Procedure did not take into consideration sub -section (3). For proper appreciation of the contentions raised, sub - sections (3), (4) and (5) of section 488 of the Criminal Procedure Code are reproduced below:

(3.) A close perusal of the various subsections of section 488 of the Criminal Procedure Code (old) shows that after the order of maintenance is passed under sub -section (1) and is sought to be executed, the opposite party is entitled to object to the execution of the maintenance order by showing sufficient cause as expressly provided in sub -section (3). Sub -section (4) lays down expressly the circumstances in which the wife though allowed maintenance will not be entitled to receive the same. If she was found in adultery or if both of them were living separately by mutual consent or if she refused to live with the husband without sufficient reason, she is debarred from receiving the maintenance allowance. Thus if sub -sections (3) and (4) are read together, the husband can object to the executability of the order of maintenance by raising any of the grounds as mentioned in sub -section (4). In Sangavva Gulappa Khandekar's case (supra) the Division Bench after considering the various provisions of section 488 of the Criminal Procedure Code held that the effect of subsections (3) and (4) was that if the wife was found living in adultery, the Magistrate was justified in refusing and in fact was bound to refuse the execution of the order of maintenance. The further question whether the order had been cancelled or not was immaterial. It was also held that once the order of maintenance was cancelled it had no existence whatsoever even for the purpose of arrears of past maintenance. This decision was followed in Hari Narayan vs. Mt. Rani Devi, AIR 1952 Madhya Bharat 53, B. Rukmini Bai vs. B. B. Suraj Bhan Singh AIR 1963 Andhra Pradesh 407 and State of Mysore vs. Shivashankar Murigeppa Mamadapur and another AIR 1966 Mysore 173. According to Mt. Bhag Sultan's case (supra) the order of maintenance passed under sub -section (1) is executable so long as it is not cancelled under sub -section (5) but unfortunately sub -section (3) was not brought to the notice of the Hon'ble Judge nor is there any discussion as to the effect of the sub -section (3) on sub -section (4). Tari Bala Suklabaidya vs. Kaibal Ram Suktabaidya, AIR 1938 Calcutta 144 also the effect of sub -section (3) was not gone into. In Ram Kishore vs. Sm. Bimla Devi and another, AIR 1967 Allahabad 658 contrary view appears to have been taken and it was observed that the phrase "fails without sufficient cause" does not include the raising of the pleas which are mentioned in sub -section (4). However, this view was not agreed to by the Division Bench of Allahabad High Court in Mehrunnisa vs. Noor Mohammad A. I. R. 1971 Allahabad 138, in which it was held as under: