DURGA SINGH Vs. SHRIMATI GULAB DASSI ETC.

JUDGEMENT

(1.) Shri Durga Singh has been asked to give maintenance to his wife Shrimati Gulab Dassi at the rate of Rs. 75 per month with effect from October 18, 1972. The present petition by him under Article 227 of the Constitution read with Sec. 561 -A and Sec. 435 of the Code of Criminal Procedure, 1898, has been directed against that order. Shrimati Gulab Dassi had filed a petition under Sec. 488 of the Code of Criminal Procedure before the Nyaya Panchayat and according to Petitioner she commanded some influence as Shri Chhagi Ram Sarpanch is closely related to her. According to Petitioner an ex -parte order of maintenance was passed by the Panchayat against him on October 18, 1972. Thereafter the Petitioner received a notice from the Court of Sub -Divisional Magistrate, Rampur, whereby he was asked to deposit Rs. 2,375 arrears of maintenance which he had not said at the rate specified in the order of the Nyaya Panchayat. Under Sec. 242(2) of the Himachal Pradesh Panchayati Raj Act, 1968, the Nyaya Panchayat found some difficulty in executing the decree of maintenance granted by the Nyaya Panchayat and accordingly the decree was forwarded to the Sub -Divisional Judge for execution. In that proceeding the Sub -Divisional Magistrate who is also the Sub -Divisional Judge for Rampur issued a show cause notice to the Petitioner and wanted to recover Rs. 2,375 on account of arrears of maintenance. The Petitioner filed objections under Sec. 488(3)(5) inasmuch as he pleaded that Shrimati Gulab Dassi was living in adultery and hence was not entitled to receive any maintenance. The Sub -Divisional Judge, however, dismissed the objections holding that he had no jurisdiction as the maintenance decree was granted by the Nyaya Panchayat and in case the husband so intended he could seek remedy before the Nyaya Panchayat. Thereafter Shri Durga Singh filed his objections before the Nyaya Panchayat but the said objections were again dismissed and the order was made that the Nyaya Panchayat could not entertain any such objection which was only entertainable by a higher Court, namely, the Court of the Sub -Divisional Judge. In this manner the Petitioner was left without any remedy and he has come to this Court under Article 227.

(2.) The main plea of the Petitioner is that the Nyaya Panchayat has failed to exercise the jurisdiction vested in it as the objections were either entertainable in the Court of the Sub -Divisional Judge or before the Nyaya Panchayat. Under Sec. 488 if a husband neglects or refuses to maintain his wife, the latter can file an application and upon proof of such neglect or refusal the Magistrate can order for such maintenance at a monthly rate. As the jurisdiction for any such order is conferred upon the Nyaya Panchayat, the order of maintenance in the present case was made by the Nyaya Panchayat. Once the stage of Sub -section (1) of Sec. 488 is passed, the second stage comes in for the enforcement of the order, in case the husband without sufficient cause fails to comply with the order granting maintenance. Under Sub -section (3) the Magistrate considers any cause shown by the husband and if the husband offers to maintain his wife on condition of her living with him, and she cannot refuse to live with him for any sufficient reason shown by here, the order granting maintenance may be cancelled with effect from the date of such refusal by the wife to live with the husband. Sub -sections (4) and (5) deal with specific conditions on account of which the wife can refuse to live with the husband or the husband can refuse to give maintenance to the wife - -namely, that the wife is living in adultery, that there are sufficient reasons whereby she refuses to live with her husband and that they are living separately by mutual consent. The plea of adultery is specifically dealt with in Sub -section (5) and upon proof of adultery and unvirtuous conduct on the part of the wife, order granting maintenance can be cancelled. In Mehrunisa v/s. Noor Mohammad : 1971 CRI. L.J. 453, a Division Bench of Allahabad High Court held that the cancellation order will not have retrospective effect. If adultery of the wife is proved, the husband will cease to give maintenance from the date she started her adulterous life. The previous breach of the order will nonetheless remain and the wife will be granted arrears of maintenance.

(3.) In the present case, it is no doubt correct that under Sub -section (2) of Sec. 242 of the Himachal Pradesh Panchayati Raj Act, 1968, the Sub -Divisional Judge has to execute the decree as if it were passed by him but that would not confer jurisdiction upon him to cancel the order of maintenance. The salutary principle that the executing Court cannot go behind the decree and is required to execute the decree as such, cannot be given a go by, simply because this provision is contained in Sub -section (2) of Sec. 242. While executing the decree a Sub -Divisional Judge has to construe it as a decree by that very Court so that he retains jurisdiction to pass any legal order which he could pass in the contingency of executing a decree passed by his own Court. Only so far Sub -section (2) goes in Sec. 242 and nothing beyond it. The provision does not confer jurisdiction upon the Sub -Divisional Judge to alter the contents of the decree or to set it aside, which jurisdiction is exclusively vested in the Court of original jurisdiction, namely, the Nyaya Panchayat. Therefore, in my opinion, the Nyaya Panchayat failed to exercise its jurisdiction when it refused to entertain the objections of the Petitioner that the wife was living in adultery and under Sub -section (5) of Sec. 488 the order of maintenance was required to be cancelled. The order of cancellation was of course to be made prospectively and not retrospectively. Similarly under Sub -section (3) of Sec. 488 the husband can point out to the Nyaya Panchayat that he was prepared to maintain his wife on condition of her living with him or that he is not entitled to maintain her because she refused to live with him for no sufficient reason. Therefore, the enquiry under Sub -section (3) or Sub -sections (4) and (5) of Sec. 488 was to be held entirely within the domain of the Nyaya Panchayat. That was the Court of original jurisdiction and the decree passed by that Court can be cancelled by it alone and not by the transfree Court of the Sub -Divisional Judge which exercised jurisdiction only within a very limited scope of executing the decree.