(1) x x x x (1) x x x x (2) x x x x (2) x x x x (3) 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 while 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 amount or until payment if sooner made : (3) 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 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: (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with in the presence of his pleader, and shall be recorded in the manner prescribed in the case of summons-cases : Section 126: PROCEDURE : (1) Proceedings under section 125 may be taken against any person in any district - (a) where he is, or (b) where he or his wife resides, or x x x x (c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child. (2) All evidence in such proceedings shall be taken in the presence of the person against whom an order of payment of maintenance is proposed to be made or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons-case: x x x x (Emphasis is supplied) A comparative study of the provisions surfaces one important change. Whereas under section 488 (6) of the Old Code, all evidence under Chapter XXXVI was required to be taken in the presence of the husband or, when his personal attendance was dispensed with, in the presence of his pleader, the necessary sequence was that all evidence about the husband's failure to comply with maintenance order without sufficient cause had also to be taken in the presence of the husband because such provision was in the said Chapter XXXVI; now under the New Code though the method of recording evidence is the same, as is clear from section 126(2) but such method is only applicable to proceeding in which payment of maintenance is proposed to be made and not every proceeding under the chapter. In other words, it is not mandatory to take evidence in proceedings under section 125(3) of the New Code in the presence of the husband or his pleader, as the case may be. The Magistrate may, on ex-parte proof rendered by the wife take recourse to section 125(3) of the New Code and issue the necessary warrants to have the maintenance order obeyed and it is for the husband to come and oppose the process by pleading that he had sufficient cause not to comply with the order. Till that step is taken, it is logically follows that the version of the wife that the husband has cause is enough to confer the jurisdiction on the Magistrate to issue failed to comply with the order without sufficient cause a requisite warrant. The view afore-expressed would presently become more clear.
5. A Division Bench of the Calcutta High Court in Ead Ali v. Lal Bibi, AIR 1914 Cal. 172 took the view that an order of the Magistrate passed under section 488 of the code for maintenance is not enforceable after the death of the person against whom the order was passed, against his estate. The ratio is based on the following extract from the precedent :- In order that a warrant may be issued under section 488 sub-section (3), for lying the amount due, it must be found that there had been a wilful neglect to comply with the order and to enable a Magistrate to find that there had been a wilful neglect, evidence has to be taken under sub-section (6), section 488 and that sub-section says that "all evidence under Chapter 36, shall be taken in the presence of the husband or the father as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader and shall be recorded in the manner prescribed in the case of summons cases." From the language of the sub-section, it is quite clear that in the mind of the legislature the instance of a deceased person against whose estate arrears of maintenance may be claimed was never present, That, of course, is merely a surmise that we express and we cannot say anything more; but the law as it stand is quite explicit in regard to the necessity for the presence of the party against whom evidence is being taken and it has been pointed out by the learned vakil, who has appeared in support of the rule, that the man against whom the order was passed, being dead, there is no claim that can be now enforceable under section 488 of the code against the estate of the deceased." It is this view which was followed by the Peshawar Judicial Commissioner's Court in Hari Singh's case (supra) and the precedent was understood by observing as follows :- "The ruling chiefly relies on the fact that, after his death, a deceased husband cannot be taken to have failed, without sufficient reasons, to comply with the order as laid down in clause (3) of section 488, Criminal P.C., and that evidence could not be recorded in the presence of the husband as required by clause (6) of that section when the husband had died." And both the above views were endorsed by a Single Bench of the Nagpur High Court in Ambadas Bajirao's case (supra).
6. The pivot on which the aforesaid three decisions revolve is that a deceased husband cannot, after his death, be present to participate in an enquiry under sub-section (3) of section 488 to the Old Code when sub-section (6) of that section requires his presence or that of his lawyer, and further by his death, the husband cannot be taken to have failed, without sufficient reasons, to comply with the order as conceived of in sub-section (3) of section 488 of the Old Code. As expressed earlier, there is a noteworthy change in the scheme of legislation, for, now in an enquiry under sub-section (3) of section 125 of the New Code of Criminal Procedure, the presence of the husband or his lawyer at the time of recording of evidence in not absolutely necessary. And as long as the husband is alive, he is capable of approaching the Court pleading sufficient reasons which occasioned failure on his behalf to comply with the order. The fact that he had, without sufficient reasons, failed to comply with the order, has not now necessarily to be determined in his presence and as observed earlier, on a prima facie proof in that regard the Magistrate can set the law in motion for the recovery of the arrears of maintenance unless and until the husband comes forth pleading and proving that he had sufficient cause or reasons for not complying with the order. Unless such an objection is raised, the criminal Court would be well within its right to assume absence of such sufficient reasons or cause by the mere fact that arrears of maintenance are due. And this assumption can validly last till the date of the death of the husband. It is only on the demise of the husband that he becomes immune of showing sufficiency of cause and an order of maintenance becomes unenforceable, for the opportunity provided under the law becomes dead with his death. Thus, his estate, as is my considered view, cannot be burdened with the enforceability of the maintenance order under the Criminal Procedure Code for any period beyond the date of the husband's death but is enforceable against it for the period till the husband's death.
7. At this stage, the observations of the Supreme Court in Captain Ramesh Chand Kaushal's case (supra), which have been very helpful to arrive at the above view, need be reproduced here :- "This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant wods with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children much inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause - the cause of the derelicts:"
8. Considerable strength also is deriable from the provisions of Section 70 of the Indian Penal Code. section 125(3) of the New Code of Criminal procedure takes aid of the provisions of section 421 whereunder methods for recovery of fine have been mentioned. Section 70 of the Indian Penal Code provides that fine is normally leviable within six years after the passing of the sentence and that the death of the offender (the person who have to pay the fines) does not discharge from the liability any property which would, after his death, be legally liable for his debts. The process of recovery of fine remaining the same, death of the person liable to pay does not ipso facto stop recovery in the context of the case in hand. It can safely be said that accumulation of arrears of maintenance stops on the date of the death of the husband and the accumulated arrears are recoverable as fine from his estate after his death.
9. Before conclusion an English case, cited by the learned counsel for the petitioner, of the Chancery Division reported in Bidie v. General Accident, Fire and Life Assurance Corporation Ltd, and others, 1948(1) All. E.R. 1885, is and of the Court of Appeal report in Re-Bidie (deceased), Bidie v. General Accident, Fire and Life Assurance Corporation Ltd., 1948 (2) All. England Report 995 need barely be mentioned to say that the principle evolved therein are valid to the statutory law existing in that country and can be of no assistance towards the interpretation of the provisions of the Code of Criminal Procedure, relating to the maintenance of wives and children, which are mainly directed towards prevention of vagrancy and for proving some succour to the destitute wives and children, and now parents, unable to maintain themselves.
10. In view of the aforesaid discussion, I hold that the arrears of maintenance due up to the date of the death of the husband are recoverable from his estate in whichever hands it is found to be. Thus, this petition files and is hereby dismissed. Petition dismissed.