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Case Number

Criminal Revn. Petn. No. 258 of 1966, against order of Addl. Munsiff-Magistrate, Coondapur

Judges

Tukol, J.

Acts

247.4. Sub-section (3) of S. 488
sub-section (3) of S. 488

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The petitioner is the husband of respondent No. 1 and father of respondents Nos. 2 and 3. The respondents had earlier obtained an order under Section 488 of the Criminal Procedure Code for payment of Rs. 50 per month for the maintenance of respondent No. 1 and her minor children; that order is dated 23-11-1965. On 25 January 1966 respondent No. 1 filed an application for recovery of arrears of maintenance.

The petitioner (husband) appeared through his lawyer and filed a written statement contending that he earned a monthly salary of Rs. 100 which was insufficient even for his own maintenance, and he offered to maintain his wife and children if they chose to live with him in Bombay. The petitioners (wife and children) stated in the lower court proceedings that the husband had no movable or immovable property. The wife also testified to the same effect, and there was no suggestion in cross-examination or in the written statement that the husband possessed movable or immovable property.

The learned Magistrate, finding that the petitioner had defaulted in payment of maintenance for 15 months, ordered imprisonment for 15 months — one month for each month's default. The Magistrate further held that the wife's refusal to accept the husband's offer to live with him in Bombay was justified because the husband had falsely attributed immorality to his wife, an act amounting to legal cruelty and entitling the wife to separate maintenance and residence.

The petitioner challenged that order by filing the present petition. Counsel for the petitioner raised four points; the court dealt with them in the order submitted.

Legal Issues Presented

Whether the Magistrate could order imprisonment for default under Section 488(3) of the Criminal Procedure Code without first issuing a warrant for attachment and sale of movable property (i.e., is issuance of a distress warrant a pre-condition to sentencing).
Whether the wife's refusal to live with the husband (and thereby to accept his offer of maintenance conditional on cohabitation) was justified, specifically whether a false attribution of immorality to a wife constitutes legal cruelty justifying separate residence and maintenance.
Whether the Magistrate erred in sentencing the petitioner for 15 months' default when evidentially arrears for only 11 months were due at the time of the application.
Whether the Magistrate should have exercised discretion to impose a lesser period per default rather than the maximum sentence of one month for each month's default.

Arguments of the Parties

Petitioner's Arguments (as presented by Mr. Mohandas N. Hegde)

The Magistrate erred in issuing an order of imprisonment without first issuing a warrant for attachment and sale of movable property, contrary to subsection (3) of Section 488 of the Criminal Procedure Code. Reliance was placed on Maung Tun Zan v. Ma Myaing, AIR 1941 Rang 247.
The Magistrate was wrong to hold that the wife had a valid ground for refusing to stay with the petitioner when he offered to live with and maintain her.
The Magistrate should have sentenced only for eleven months' default (as arrears for eleven months were due), not fifteen months.
The Magistrate should have exercised discretion and imposed a lesser sentence per default rather than the maximum of one month for each default.

Respondents' Position (as reflected in the record)

Respondent No. 1 applied for recovery of arrears and stated on oath that the husband had no movable or immovable property which could be attached to enforce the maintenance order.
The wife refused to accept the husband's offer to live with him in Bombay; the Magistrate found that the husband had falsely attributed immorality to his wife and that circumstances indicated desertion and that the offer was not bona fide.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Maung Tun Zan v. Ma Myaing, AIR 1941 Rang 247	Authority cited for the proposition that a Magistrate should first issue a distress warrant (warrant for attachment) before committing a defaulter to jail.	The court considered this Rangoon single-judge decision but expressly disagreed with its conclusion, stating there is nothing in subsection (3) of S.488 making issuance of a distress warrant a condition precedent to sentencing.
K.R. Chawda v. State of Bombay, AIR 1958 Bom 99 (Full Bench)	Interpretation that subsection (3) of S.488 confers two independent powers on the Magistrate: (a) to issue a warrant for levy/execution, and (b) to sentence for default; the issue of a warrant is not a condition precedent to sentencing.	The court relied on this Full Bench decision to hold that the Magistrate's power to sentence is independent of the power to issue a warrant, supporting the view that imprisonment may be ordered without prior failure of attachment proceedings.
Gangalamma v. Venkata Rami Reddy, AIR 1950 Mad 385	Authority that deliberate false attribution of immorality to a wife amounts to legal cruelty and entitles the wife to live separately and claim maintenance.	The court cited this decision to support the Magistrate's conclusion that the wife's refusal to live with the husband was justified where immorality had been falsely attributed to her.
Subbama v. Venkata Reddy, AIR 1950 Mad 394	Supports the view that false imputations of immorality justify separate residence and maintenance.	The court treated this decision as one of the authorities consistent with the view that a wife may justifiably refuse to live with a husband who falsely imputes immorality to her.
Kandaswami v. Angammal, AIR 1960 Mad 348	Affirmation by the Madras High Court of the principle that false imputation of immorality can amount to legal cruelty and justify separation/maintenance.	The court cited this case as further affirmation of the legal principle relied upon to uphold the Magistrate's finding on the wife's justified refusal.
Narayanan v. Amini, AIR 1952 Trav-Co 562	Holds that an unfounded imputation of unchastity to a wife, and reiteration of the same in evidence, is sufficient reason for her refusing to live with the husband, regardless of whether it formally amounts to legal cruelty.	The court relied on this authority to reinforce that an unfounded charge of unchastity provides sufficient grounds for a wife to refuse cohabitation, supporting the Magistrate's conclusion.

Court's Reasoning and Analysis

The court's analysis proceeded in the order of the contentions raised by counsel:

Interpretation of S.488(3) CrPC:
The court set out the text of subsection (3) and analyzed its structure, observing that it prescribes two distinct remedies for enforcement of a maintenance order: (a) the issue of a warrant for levying the amount (which may be executed by attachment and sale of movable property or by execution according to civil process against movable/immovable property), and (b) the power to sentence a defaulter to imprisonment for whole or part of each month's unpaid allowance (up to one month per default or until earlier payment).

Relying on the Full Bench decision in K.R. Chawda, the court held that the sub-section confers two independent powers; the power to sentence is not dependent on the prior issue or failure of a distress warrant. Consequently, there is no textual basis in subsection (3) to interpret issuance of a distress warrant as a condition precedent to imprisonment.

The court considered but rejected the Rangoon decision (Maung Tun Zan v. Ma Myaing) which held that a distress warrant should be issued first; the court found nothing in the sub-section to support that view.
Application to the facts regarding attachment:
Even assuming arguendo the counsel's preferred construction, the court found no difficulty because the wife had sworn that the husband had no movable property to attach; there was no cross-examination contradicting this, nor any averment in the petitioner's written statement claiming attachable property. Thus, there was nothing improper in the Magistrate's decision to proceed to sentence because there was no movable property to attach.
Wife's refusal to accept the husband's offer to live together:
The Magistrate had found that the husband had made false imputations of immorality against his wife and that the surrounding facts suggested desertion and that the husband's offer to maintain was not bona fide. The court reviewed authorities (Madras and Travancore-Cochin decisions) recognizing that deliberate false attribution of immorality constitutes legal cruelty and justifies separate residence and maintenance.

Applying these principles, the court agreed that the wife's refusal to accept the offer was justified. It noted the husband's lack of sincerity (he did not appear at proceedings and gave no expression of regret), supporting the Magistrate's finding of non-bona fide offer.
Sentencing quantum and exercise of discretion:
The court agreed with the petitioner's contention that the Magistrate erred in sentencing for fifteen months when arrears for only eleven months were due at the time of the application. The court also expressed that imposing one month per default (the maximum) was somewhat severe and indicated the Magistrate should use discretion in fixing the period per default.

As a result, the court modified the sentence: it reduced the punishment to fifteen days' imprisonment for each default in respect of eleven months' arrears, producing a total imprisonment of five and a half months (11 defaults × 15 days each). Apart from this modification, the court dismissed the remaining contentions raised in the petition.

Holding and Implications

Holding: The petition is dismissed, subject to modification of the sentence imposed by the Magistrate. The court upheld the Magistrate's power to sentence under subsection (3) of Section 488 CrPC without regard to a prior unsuccessful attachment, and it upheld the Magistrate's finding that the wife was justified in refusing to live with the husband because of false imputations of immorality.

Modification of sentence (direct effect on the parties):

The court reduced the period of imprisonment to fifteen days for each default in respect of eleven months' arrears, resulting in a total imprisonment of five and a half months in lieu of the Magistrate's fifteen months.
Other aspects of the Magistrate's order were upheld: the finding that the husband's offer was not bona fide and the conclusion that the wife had valid grounds for refusing to cohabit remained intact.

Broader implications: The opinion applies existing authorities on the interpretation of S.488(3) CrPC and on the law of separate maintenance; it does not purport to create a new legal principle. The court expressly relied on the Full Bench decision in K.R. Chawda to interpret subsection (3) as conferring two independent powers and cited established authorities holding that false imputations of immorality can amount to legal cruelty justifying separate maintenance.

GGM/D.V.C

Final order: Petition dismissed (subject to the modification of sentence described above).

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Antha v. Lakshmi And Others

1. The petitioner in this case is the husband of respondent No. 1 and father of respondents Nos. 2 and 3. There was an order in the proceedings instituted by the respondents under S. 488 of Criminal P.C for payment of Rs. 50 per month to the respondents for their maintenance. The order is dated 23-11-1965. Respondent No. 1 then filed an application on January 25, 1966 for recovery of the arrears of maintenance due to her and her minor children. The present petitioner appeared through his Lawyer who filed a written statement contending that he was getting a monthly salary of Rs. 100 which was insufficient even for his own maintenance and that he was prepared to maintain the petitioners if they chose to live with him in Bombay. The petitioners stated expressly in their application in the Court below that the husband had no movable or immovable property of his own. The wife who was examined also stated to the same effect and there was no allegation or suggestion in the cross-examination that the husband was possessed of any movable or immovable property. The learned Magistrate ordered that as the present petitioner had committed default in the payment of maintenance amount for 15 months, he should undergo sentence of imprisonment for 15 months, at the rate of one month for each month's default. As regards the offer of the husband to maintain his wife and children, if they chose to join him in Bombay, the wife's refusal to accept the offer was held justified on the ground that deliberate attribution of immorality falsely to a wife amounts to legal cruelty entitling the wife to separate maintenance and residence.

2. In the present petition, Mr. Mohandas N. Hegde, learned Counsel appearing for the petitioner, has submitted four points for my consideration and I propose to deal with each of them in the order in which they were submitted.

3. The first contention raised by the learned Advocate is that the issue of warrant of imprisonment without first issuing a warrant for attachment and sale of movable was in contravention of sub-section (3) of S. 488 and that on that account the entire order passed by the Magistrate should be quashed. In support of this contention, he has placed reliance on the decision of the Rangoon High Court in Maung Tun Zan v. Ma Myaing, AIR 1941 Rang 247.

4. sub-section (3) of S. 488 of the Criminal P.C which provides for enforcement of an order for maintenance reads as follows:—

“If any person so ordered (fails without sufficient cause) to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:

Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.”

5. It is obvious from the first paragraph of sub-sec. (3) that two remedies may be resorted to for enforcement of the order. The first is for issue of a warrant for levying the amount due in the manner provided for levying of fine. Section 386 prescribes the procedure for recovery of fine by following either or both of the ways mentioned therein. One of the ways indicated in that section is the issue of warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender. The second way is that of issuing warrant to the Collector authorising him to realise the amount by execution according to civil process against the movable or immovable property or both of the defaulter.

6. So under the first method by which the order of maintenance can be enforced, it was open to the Magistrate to issue a warrant for recovery of the amount by, attachment and sale or movable or to have sent the warrant to the Collector for attachment of movables or immovables or both and for sale of the same. The second method indicated by sub-sec. (3) of S. 488 is that the Magistrate may sentence a person making default in the payment of the maintenance amount for whole or in part of each month's allowance to imprisonment for a term which may extend to one month or until payment, if made earlier.

7. The contention of Mr. Mohandas N. Hegde is that the second method prescribed by the section, viz., passing an order of sentence of imprisonment cannot be exercised by the Magistrate until he had first issued a warrant for attachment and sale of movable property and failed to recover either whole or any portion of the allowance due on the date of the application. Reading sub-section (3) as a whole, it does not appear to me that the power to pass an order of sentence can be exercised only if the warrant for attachment and sale of movables proves abortive. The two powers appear to be independent. In this connection reference may be made to the Full Bench decision of the Bombay High Court in K.R Chawda v. State of Bombay, AIR 1958 Bom 99 (FB), where Chagla, C.J, speaking for the Bench examined the scope of sub-sec. (3) of S. 488 and observed:

“Therefore, this sub-section confers upon the Magistrate two independent powers; one to issue a warrant which has to be executed in the manner laid down in the sub-section and the other to sentence the person also in the manner laid down in the sub-section…. The power of the Magistrate to sentence the applicant is not dependent upon the issue of the warrant or, in other words the issue of the warrant is not a condition precedent to the jurisdiction of the Magistrate to sentence the applicant….”

8. In the instant case no difficulty arises even if the sub-section (3) were construed in the manner in which the learned advocate wants me to construe, because the wife stated on oath that her husband had no movable property which could be attached for enforcing the order of maintenance. She was neither cross-examined nor was any averment made in the written statement filed in the proceedings that he had any movable property which could be attached and sold for realising the amount due under the order in execution. It cannot, therefore, be said that the Magistrate was wrong in holding that there was no propriety in issuing a warrant for attachment as the petitioner possessed no movable property for recovery of the amount.

9. As regards the decision cited by the learned advocate, it is true that a single Judge of the Rangoon High Court has come to the conclusion that the Magistrate cannot straightway order a person to be committed to jail and the first thing which the Magistrate should do is to issue a distress warrant. With respect, I am unable to agree with this view as there is nothing in the sub-section which makes the operation of the second part dealing with the power of sentence of imprisonment dependent upon the issue of a warrant for attachment of property. I am, therefore, of the opinion that the order of the Magistrate passing the order of sentence is in accordance with law.

10. The second contention raised by the learned advocate is that it was an error on the part of the Magistrate to have held that the wife had a good ground for refusing to stay with the petitioner when he made an offer to take her to his house and live with her. The learned Magistrate has referred to the maintenance proceedings and the contention raised by the present petitioner therein and came to the conclusion that the present petitioner falsely stated that his wife was living in adultery and that the third petitioner (son) was not born of him. The Magistrate also noted that the facts and circumstances suggested that the present petitioner had deserted his wife and her small children and the offer made at the hearing of the enforcement proceedings was not bona fide. The contention of the learned advocate is that the view taken by the Magistrate that attribution of immorality falsely to a wife would be a good ground for separate maintenance and for her to live separately was erroneous.

11. There are a number of decisions which, support the view taken by a Magistrate. Mention may be made of the decision of the Madras High Court in Gangalamma v. Venkata Rami Reddy, AIR 1950 Mad 385, in which it has been laid down that “a deliberate attribution of immorality falsely to a wife will certainly fall under the definition of legal cruelty and entitle a wife to live-separately from such a husband and claim separate maintenance”. In support of this view the learned Judge has referred to Chanakya's Arthasastra wherein an attribution of immorality to a wife was considered as a grave charge entitling her to live apart.

12. There is another decision of the same Judges in Subbama v. Venkata Reddy, AIR 1950 Mad 394. The views taken in the aforesaid decisions have been further affirmed by the same High Court in Kandaswami v. Angammal, AIR 1960 Mad 348. I may also mention the decision of the Travancore-Cochin High Court in Narayanan v. Amini, AIR 1952 Trav-Co 562, in which it has been stated that an unfounded imputation of unchastity to the wife by her husband and reiteration of the same in his evidence is sufficient reason for her refusing to live with him, apart from the fact whether such imputation amounts to legal cruelty or not.

13. In the present case, it does not appear that the husband was sincere about his offer. He has not cared to appear in the proceedings and does not appear to have expressed any regret for the imputations made. The circumstances of the case justify the conclusion drawn by the Magistrate that the: offer is not bona fide.

14. The remaining two objections may be dealt with together. One of them is that the Magistrate ought to have passed an order of imprisonment in respect of default for eleven months only and not for fifteen months and that he should have used his discretion in determining the period of sentence instead of inflicting the maximum sentence. As regards the first aspect of this contention, I am in full agreement with the submission. It appears that arrears only for eleven months were due at the time of the application and the Magistrate could not have passed the sentence of imprisonment for arrears of fifteen months. I also agree that the maximum period of one month for each default is somewhat severe. I would accordingly modify the order passed by the Magistrate and reduce the period to fifteen days for each default, in respect of eleven months' default. In me result, the total imprisonment will be for five and a half months in respect of the defaults for eleven months. Subject to this modification in the order, the other contentions in the petition fail, and the same is dismissed.

GGM/D.V.C

15. Petition dismissed.

Antha v. Lakshmi And Others

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments (as presented by Mr. Mohandas N. Hegde)

Respondents' Position (as reflected in the record)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Antha v. Lakshmi And Others

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