Mehmood Ahmad Khan vs Kubra Begum and Others

R.P. Sethi, J.—Warrants in terms of Sub-section (3) of Section 488, Cr. P.C. were Issued against the petitioner-husband in an application

filed by his wife and children for the enforcement of the order of trial Court dated 27-1-1988. Aggrieved by the issuance of the aforesaid order, a

revision petition was preferred before the learned Sessions Judge, who vide his order of reference dated 31-12-1988 has recommended that the

order passed by the executing Court may be set aside.

I have heard the learned Counsel for the parties and have perused the recond.

Mr. Salaria the learned Counsel for the petitioner herein has referred to the provisions of Sub-section (3) of Section 488, Cr. P.C. to urge that

the process in terms of the aforesaid Sub-section could not have been resorted to against the petitioner without issuing him a notice to show

sufficient cause for non-compliance of the order of maintenance passed against him. It is submitted that in all cases the executing Magistrate is

under an obligation to issue a notice to the husband or the father as the case may be before resorting to the issuance of warrant or process for the

recovery of the amount alleged to have not been paid. Mr. Salaria has referred to AIR 1959 All 566, AIR 1966 Mys 176 AIR 1952 MP 53 :

(1952 Crl LJ 574) in support of his contention. The learned Sessions Judge has also held that a warrant for levy of amount due can be issued only

if the person ordered to pay the amount fails to show the sufficient cause for non-compliance of the order, which can be ascertained only after the

issuance of notice of show cause to him.

Sub-section (3) of Section 488, Cr. P.C. provides :

(3) Enforcement of order: 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 the 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 refused 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.

If a husband has contracted marriage with another wife or keeps mistress, it shall be considered to be a just ground for his wife's refusal to live with

him.

Provided further, that no warrant shall be issued for the recovery of any amount due under this section unless application be mode to the Court of

levy such amount within a period of one year from the date on which it became due"".

A perusal of Sub-section (3) along with provisos attached to it clearly shows that the issuance of the notice for showing. the sufficient cause is

contemplated only in such cases where the order of maintenance is passed in favour of the wife. The proviso of Sub-section (3) would, therefore,

be not applicable in the case where the maintenance has been granted to the neglected children. Proviso to Sub-section (3) are ejusdem generic to

the main Sub-section which control Its applicability and point out the circumstances where it is to be applied. The general words of this Sub-

section have to be restricted in their application .to the situations contemplated by the provisos. such an interpretation alone can accomplish the

purpose and object of Section 488, Cr. P.C. providing maintenance for the deserted wife and neglected children. What has been referred to,

without sufficient cause"", has been explained in the proviso attached to the said sub-section. Sub-section (3) provides that if a person foils without

sufficient cause to comply the order, the process as detailed therein shall be issued. Proviso to the said Sub-section says that if such person offers

to maintain his wife on condition of her living with him and upon her refusal to live with him, the Magistrate may consider any grounds for refusal

stated by her and make an order under the aforesaid section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Similarly if a husband has contracted marriage with another wife or keeps a mistress, it is considered to be a just ground for his wife to refuse to

live with him. Order may not be enforced even otherwise if it is proved that the wife was living in adultery or such other similar grounds. There is no

ground mentioned in the whole of the section where the father con refuse to maintain his children, whether legitimate or illegitimate or to show

cause for non-compliance of the order passed in favour of the children. The object of Section 488, Cr. P.C. is to prevent vogaroncy and not to

encourage it. Putting any other interpretation to Sub-section (3) of Section 488, Cr. P.C may result in encouraging vagarancy and forcing the

children to strave on the false pretexts and baseless pleas, as appears to hove been done in the Instant case by the petitioner-father. In case of

children, the petitioner. father has no right to show any cause except to comply the order of maintenance passed against him. However if there is

change in the circumstances showing that the children after attaining majority or otherwise ore in a position to maintain themselves, the remedy

open in that case would be to have resort to the provisions of Section 489, Cr. P.C. and not forcing the Court to hold second trial, after issuance

of the notice. The order of reference is, therefore, misconceived, hence rejected. The order of the trial Court is up-held.