PENUBALA MUNI KRISHNAYYA Vs. PENUBALA AKILAMMA

JUDGEMENT

(1.) This is an application to revise the order passed by the learned Sub-Divisional Magistrate of Chandragiri on the 29 October, 1939, on an application made to him on the 28 October, 1939, on behalf of the petitioner. The petitioner is the husband of a woman named Akkulamma in whose favour the learned Joint Magistrate passed an order in M.C. No. 104 of 1938 on the 7 February, 1939, directing this petitioner to pay his wife Rs. 3-8-0 per mensem as maintenance under Section 488, Criminal Procedure Code. The petitioner did not pay in accordance with that order. Before she could enforce the order, the petitioner filed a suit O.S. No. 128 of 1939 in the Court of the District Munsif of Tirupati and obtained an interim injunction restraining his wife from enforcing the order for maintenance. The injunction was in force until 21 July, 1939. On that date, the interim injunction was vacated and the petitioner's wife on the 24 July, 1939, applied to the joint Magistrate to direct this petitioner to pay Rs. 17-8-0 being the arrears for five months. The learned Joint Magistrate issued a distress warrant and as the money was not realised, he gave notice to the petitioner who appeared before him. The Magistrate found that lie had without sufficient cause failed to pay the money due to his wife under the maintenance order. The Magistrate, therefore, sentenced him to suffer rigorous imprisonment for one month, or until the amount of the arrears should sooner be paid. This order was passed on the 23 October, 1939. On the 24 October, the petitioner filed an insolvency petition in the Court of the District Munsif and obtained from him an order for his release under Section 23(1) of the Provincial Insolvency Act. The District Munsif communicated a copy of this order to the Joint Magistrate with a letter dated 25th October and the petitioner made an application on the 28 October for his release. The learned Joint Magistrate dismissed his application for release and this revision petition has consequently been brought.

(2.) The contention on behalf of the petitioner is that the protection order passed by the Insolvency Court is a decision of a competent Civil Court within the meaning of Section 489(2), Criminal Procedure Code, in consequence of which the Joint Magistrate is compelled to cancel the sentence of imprisonment passed upon this petitioner. There is no authority for this contention. Learned Counsel for the petitioner has referred us to the cases reported in Tokee Bibi V/s. Abdool Khan (1879) I.L.R. 5 Cal. 536 and Halfhide V/s. Halfhide (1923) I.L.R. 50 Cal. 867. But we do not think that they have any application. In the earlier case there was no sentence of imprisonment passed at all. In the second case, the protection order had been issued before the sentence of imprisonment was passed, and after the sentence of imprisonment was passed, an adjudication order had been passed and the protection order, continued until discharge. Their Lordships of the Calcutta High Court said: In our opinion, the fact that he has been adjudicated an insolvent is conclusive, so long as the order of adjudication stands, that the petitioner is unable to pay his debts. There is also the order of protection. It follows, therefore, that the petitioner being unable to pay his debts, is not guilty of wilful neglect within the meaning of Section 488, Criminal Procedure Code.

(3.) It is noticeable that there was also no finding by the Magistrate of wilful neglect in that case. The terms of Section 488(3) have since been altered. There is no question now of wilful neglect. The section reads: If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order...sentence such person...to imprisonment.