1. In this reference made by the Chief City Magistrate, Hyderabad under Section 438 Cr. P.C several contentions regarding the enforcibility of an order of maintenance passed under Section 488 Cr. P.C have been raised.

2. M.C No. 12/66 on the file of the III City Magistrate, Hyderabad was a petition filed on 5-5-1966 by the wife on her behalf and on behalf of her minor daughter claiming maintenance from her husband under Section 488(1) Cr. P.C An order was passed on 30-11-1968 directing the respondent husband to pay a sum of Rs. 20/- to the wife and Rs. 10/- to the daughter per month towards their maintenance from the date of the petition.

3. On 20-2-1969 a petition under Section 485(3) was filed for the recovery of arrears from the date of petition 5-5-66 upto 5-3-69 by issue of an arrest warrant, as no amount was paid since the date of the order. A counter was filed by the husband contending that arrears for a period of more than one year are not recoverable as the rest of the claim is barred by limitation, that the Magistrate has no jurisdiction to issue a warrant of arrest for the recovery of an amount, without an application for recovery, that the petitioners are earning their livelihood that the 2nd petitioner has also attained her puberty, that therefore they are not entitled to claim maintenance, that he is also prepared to maintain them if they come and live with him and a fresh enquiry may be held regarding these objections before the enforcement of the order of maintenance. All these objections were over-ruled by the Magistrate and the petition was allowed and an arrest warrant was directed to be issued.

4. On a petition to revise that order being filed before the Chief City Magistrate, he upheld the order of the lower Court, except with regard to the offer made by the respondent to maintain his wife and daughter if they come and live with him. He held that the order of the Magistrate issuing a warrant after refusing to enquire into the matter whether the offer made is bonafide or not, is illegal and has recommended to this Court that the order of the Magistrate be quashed and he may be directed to enquire into the question and dispose of the petition according to law.

5. In this reference, both the counsel for the petitioners and the respondent have again urged all the contentions raised before the Chief City Magistrate. The first contention of the respondent husband is that the petitioners are not entitled to claim arrears of maintenance for more than one year, as the rest of the claim is barred by limitation. This contention is not correct. The second proviso to Section 488(3) Cr. P.C stipulates that no warrant shall be issued for the recovery of any amount due unless an application be made to the Court to levy such amount within a period of one year from the date on which it became due. The limitation of one year prescribed is in relation to the date on which the amount falls due. Under Section 488(2) Cr. P.C any amount directed to be paid by the Magistrate may be made payable either from the date of the order or from the date of the application for maintenance. The option is therefore left to the enquiring court as to from which of the two dates the maintenance should be directed to be paid. In this case, the order was that the maintenance fixed should be payable from the date of application, i.e 5-5-66. As the final order was passed on 30-11-1968, arrears from 5-5-66 to 30-11-1968 became due only on the date of the order. Any petition for recovery of the amount can be filed within one year from the date of the order on which date the arrears became due. As the petition for recovery has been filed on 20-2-1969 after a lapse of only 82 days from the date of the order it is very much within the period of limitation prescribed. If it is only the arrears of 12 months that a person can claim at any time, the provisions of Section 488(2) Cr. P.C will become meaningless, as if the final order is to be passed after the enquiry that has been pending for two or more years, a direction to pay the amount from the date of the application will be ineffective. Therefore, this contention has rightly been overruled by both the courts below. The petitioner have only claimed arrears upto the date of the order and a period of three months thereafter, i.e upto 5-3-1959. The entire claim is therefore within time.

6. The next contention of the respondent is that his wife and daughter are now able to maintain themselves by their earnings, that the daughter also had attained her puberty and therefore they are not entitled to be paid any maintenance. The contention that while fixing the maintenance, the lower Court had gone into the question of the capacity of the parties to maintain themselves and therefore it cannot be gone into again, is not correct. Section 488(3) says that if any person fails without sufficient cause to comply with the order of maintenance a warrant etc., may be issued. The term ‘sufficient cause’ indicates that it is open to the respondent who had been directed to pay the maintenance to show that the petitioners are not entitled to further payment of maintenance or to any part of the arrears by reason of certain altered circumstances. The instances of such altered circumstances may be the increase in income of the parties which enables them to maintain themselves or adultery and other disabilities disentitling the wife or making her liable to forfeit the maintenance ordered. Therefore it is incumbent on the Court to make an enquiry into the allegations even under section 488 sub-section (3). No doubt it was open to the respondent to file a petition for the cancellation of the maintenance ordered under Section 488(5) but absence of such a petition does not deprive him of the right to set up the plea under section 483(3) Cr. P.C (Vide Kamala Sundari Dassi…First Party; v. Nilmony Das…Second Party. . 1953 Crl. L.J 814 Calcutta. and Hari Narayana v. Rani Devi . 1952 Crl. L.J 524 Calcutta.. The Court is bound to enquire into the allegation and if sufficient cause is shown and if the allegations are established, alter or cancel the maintenance ordered. In this case, according to the respondent, his wife and daughter were able to maintain themselves. That is an allegation that was enquired into in the petition itself which was ordered only about 3 months prior to the filing of this petition for enforcement of the order. It is very unlikely that anything could have happened enabling them to earn more or be in a better position to maintain themselves. In any case, the respondent is liable to pay the arrears of maintenance amount until the date of the order as the order was passed after enquiring into those allegations, and as there was no likelihood of any change in the earning capacity within three months thereafter, he is liable to pay the entire arrears claimed.

7. The next contention is that the daughter has matured and therefore she is not entitled to any maintenance. As pointed out in Nanak Chand v. Chandra Kishore . 1970 Crl. L.J 522 S.C the word ‘Child’ is not defined in the Criminal Procedure Code itself. It has different meanings in different contexts. Where the word ‘child’ is used in conjunction with parentage, it is not concerned with age. It is not used to indicate an infant as opposed to an adult. In the present context it only means an offspring. An offspring, whether male or female does not cease to be the child of the parents whether he or she is a minor or a major. Therefore, as long as the offspring is unable to maintain itself, a duty is cast on the parent, i.e father, to maintain it. A married daughter still remains the child of her father. Even if she is married her married status does not ipso facto make her forfeit her right to maintenance from her father. It is her financial status that counts and if her husband is unable to maintain her and she is otherwise unable to maintain herself the father will be still liable. Therefore, there is no force in the contention of the respondent that as his daughter has matured, his liability has ceased and she is not entitled to the maintenance. The entire maintenance amount, claimed as arrears, is therefore payable.

8. The next point urged is that without issuing a warrant for realising the arrears, the respondent cannot be sentenced to any term of imprisonment. Under the second proviso to Section 488(3) for every breach of the order, the magistrate can issue a warrant for levying the amount due in the manner hereinfore provided for in levying fines and may sentence such person for the whole or part of each month's allowance that remains unpaid. In Jagannath v. Punamshi . A.I.R 1968 Orissa, 35. it was held that as under Section 488(3) it is apparent that in the first instance warrant of attachment of movable and immovable properties should be issued, that the properties should be sold in discharge of the arrears due and on such steps being taken if the arrears amount still remains unpaid, it is open to the Magistrate to issue a body warrant and not until then and therefore the issue simultaneously of warrant of attachment and body warrant is not in accordance with law. But in Anatha v. Lakshmi . ??? Crl. L.J 572., following certain remarks made in K.R Chawda at State of Bombay6 it was held that reading sub-section (3) of Section 488 Cr. P.C as a whole it cannot be said that the power to pass an order of sentence can be exercised only if the warrant of attachment and sale of movables proves abortive, that the two powers are independent and the respondent can be sentenced for non-payment without issuing a warrant of attachment. It was however pointed out that in that case no difficulty would arise even otherwise as the husband had no movable property which can be attached for enforcing the order of maintenance. In the Full Bench Decision that was followed, the question for consideration was whether a warrant of arrest for more than one month could be issued for the recovery of arrears of maintenance. The question whether it could be issued without having recourse to the provision of having the property attached and money realised was not directly in issue. Section 488(3) provides for sentencing a person “for the wole of or any part of each month's allowance remaining unpaid after execution of the warrant.” These words will have no meaning if it was the intention of the Legislature that even without recourse to a warrant of attachment, a warrant of imprisonment can be ordered. What is contemplated is that in the first instance a warrant of attachment of the property to satisfy the demand of arrears should issue and only if the whole or any part of it remains unpaid after execution of the warrant, imprisonment can be ordered. Therefore, the issue of a warrant of attachment and sale is a condition precedent to the issue of a warrant for imprisonment. The warrant for arrest directed to be issued without first having recourse to attachment and sale of the property of the Respondent is illegal.

9. The next contention raised in this case is that no more than a month's sentence can be imposed in enforcing the order of maintenance, whatever the arrears may be. Following the ruling in Allapichai Ranuthar v. Mohidin Bibi . 1897 20 Madras 3. in Emperor v. Beni . A.I.R 1938 Allahabad 386 F.B. it was held that the section does not enjoin that there should be a separate warrant in respect of each term of imprisonment for one month, and that where arrears have been allowed to accumulate, the Court can issue one warrant and impose a cumulative sentence of imprisonment. In K.R Chawda v. State of Bombay cited above, it was held that when the Magistrate ordered imprisonment for 15 days with regard to each month's arrears for four months, he had jurisdiction to pass such an order. Therefore the contention that whatever the arrears the maximum period of imprisonment that can be ordered is only one month is not tenable.

10. The next point urged is that the Magistrate was wrong in holding that as the respondent's offer of his willingness to take back his wife and daughter and maintain them, provided they are willing to live with him, had been considered and rejected by the Magistrate while passing the original order under Section 488(1) Cr. P.C it cannot be considered again. The Chief City Magistrate has upheld this objection. The first proviso to section 488(3) which relates to the enforcement of a maintenance order also says that if such an offer is made, the Magistrate may consider any grounds of refusal stated by the wife and may make an order under the section notwithstanding such offer, if he is satisfied that there is just ground for so refusing. This would show that not only at the time of the enquiry into the main petition under Section 488(1) but also at the time of the enquiry for the enforcement of the order under Section 488(3) it is open to the respondent to make the offer of his willingness to take back his wife and daughter and maintain them. To deny him that right would mean that when once an order under Section 483 Cr. P.C is made, the wife has a right to live separately for her life time. Changed conditions may warrant a review of the situation and if the Court should find that the offer made is bonafide, it should direct the wife to join her husband and cancel the maintenance. If, on the other hand, the wife's refusal is just, reject the prayer of the husband to take her back and order continuation of payment of maintenance. But in the enquiry even if the finding is in favour of the respondent, that will not affect the arrears that had become payable until the date of that order. It will only affect the liability of the respondent to maintain his wife and child in future. Therefore in this case, the petitioners are entitled to the arrears claimed by them and the magistrate in the first instance should issue a warrant of attachment of the property for realisation of the amount due and also hold an enquiry with regard to the bonafide offer of the respondent to maintain his wife and daughter, provided they go and live with him, and also the just cause for refusal, if any set up by the wife, and pass orders according to law.

11. The order of the Magistrate directing the issue of a warrant of arrest is set aside and the petition is remanded to the Magistrate for disposal according to law in the light of the observations made above.