GOVERDHAN DASS Vs. BHAGMATU

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution read with sections 401 and 482 of the Code of Criminal Procedure has been filed by Goverdhan Dass, the husband of the respondent, challenging the order of Judicial Magistrate, passed on September 8, 1976, rejecting the objections of the petitioner with regard to the maintainability of the execution petition, as contemplated under section 488(3) of the Code of Criminal Procedure, 1898.

(2.) THE respondent had filed an application before the Sub -Divisional Magistrate, Rampur, for grant of maintenance for herself and her minor children. This application was allowed and an amount of Rs. 75/ - per month was granted by the Magistrate on account of maintenance against the present petitioner. He, however, did not make the payment as directed by the Magistrate, therefore, the respondent filed an application on March 18, 1975, for enforcement of the order for payment of the arrears of maintenance from 4 -11 -1970 to 4 -3 -1975. This application was opposed by the petitioner on the ground that the learned Magistrate had no jurisdiction to award a composite amount by way of maintenance to the wife and children. According to the petitioner, the Magistrate have awarded separate amount to the wife and to each child. According to him, the composite order of maintenance was inexecutable. The learned Magistrate overruled the objection raised by the husband. He held on the basis of Chander Parkash Bodh Raj v. Smt. Shila Rani Chander Parkash 1968 Cr. L. J. 1153 that it is not imperative that the Court should determine separately the amount of maintenauce for the wife and children.

(3.) IT is against this order of rejection of the objection that the husband has filed this petition. Shri Hira Singh Thakur, learned counsel for the petitioner has sought to raise three points in this petition. The first is that the order allowing maintenance does not specify the amount of maintenance payable to the wife and each child separately. This order, therefore, according to him, is without jurisdiction and as such is not executable. The second point is that the quantum fixed by the learned Magistrate is too excessive and high. The petitioner is a Government servant, having a low salary and is not in a position to pay such a huge amount by way of maintenance. The third point raised is that the learned Magistrate could not attach more than 1/3rd of his basic salary, but the learned Magistrate had ordered the attachment of the entire salary of the petitioner, and, according to him, this order is wholly unwarranted.