Ram Narain v. Manki — 1972 DIGILAW 324 (ALL)

ORDER C.D. Parekh, J. - This revision has been preferred against the order dated 3-7-1969 passed by the Sub-Divisional Magistrate (North), Varanasi, in Criminal Case No. 18/115 of 1968 Manki Devi v. Ram Narain u/s 488 Code of Criminal Procedure. This order of the magistrate was challenged in Cr. Rev. No. 1172 of 1969 before the Sessions Judge who by his order dated 30-10-1971 dismissed the revision application and did not make the reference. 2. Briefly the facts of the case are that the opposite party Manki Devi, being the wedded wife of the Applicant Ram Narain, appeared to have been neglected by Ram Narain and she was not being maintained and therefore, she applied for maintenance allowance against Ram Narain the Applicant before this Court. The said application as it appears was filed on 20th of June, 1967. The proceedings went on and on 16-4-1968 an order u/s 488(1) Code of Criminal Procedure was passed and she was allowed maintenance allowance of Rs. 35/- per month and the Applicant was directed Jo pay the maintenance allowance to Her. This maintenance allowance was made payable from the date of the application, i.e., 20th of June, 1967. The maintenance allowance was not paid to the opposite party by the Applicant and therefore, on 11-4-1969 Smt. Manki Devi applied Under Sub-clause (3) of Section 488 Code of Criminal Procedure and the magistrate directed a warrant to be issued on 3rd of July, 1969. 3. Learned Counsel for the Applicant stressed before me that this order dated 3rd of July, 1969, was passed without any notice to the Applicant Ram Narain. In my opinion the contention raised is not well-founded. From the record it appears that on 13th of June, 1969, the Applicant appeared before the magistrate and he complained that an attachment was effected of his properties and raised various other objections. From the record it does appear that an order dated 2nd of May, 1969, was passed but the magistrate, gave an opportunity to the Applicant and on 3rd of July, 1969, passed the said order. Therefore, it cannot be stated that the Applicant was given no opportunity to contest the application by the magistrate. The Applicant himself appeared before the magistrate and filed a written objection. 4. Therefore, it cannot be stated that the Applicant was given no opportunity to contest the application by the magistrate. The Applicant himself appeared before the magistrate and filed a written objection. 4. It was next contended that there was no evidence on record to prove the fact that there had been default in payment of maintenance allowance as directed by the magistrate. From the order-sheet I find that the record of the case deciding the application u/s 488 Code of Criminal Procedure was before the magistrate and an application was filed stating that the maintenance allowance as directed by the magistrate dated 16-4-1968 was not paid. It was not the case of the Applicant, oral or written, that he had paid the maintenance allowance. The magistrate, therefore, after considering these facts, directed that the maintenance allowance be paid as directed in the order dated 16-4-1968. 5. It was next contended that a sum of Rs. 758/- was claimed as arrears of maintenance allowance and this could not have been done. According to the learned Counsel the maintenance allowance for 12 months only could have been claimed by the opposite party. He has placed reliance on the proviso to Sub-section (3) of Section 488 Code of Criminal Procedure which runs thus: 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 S.N.otwithstanding such offer, if he is satisfied that there is just ground for so doing. Provided, further, that no warrant shall be issued for the recovery of any amount due under this section unless 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 learned Counsel stressed that the words "it became due" mean that the maintenance allowance in this case became due on 20th of June, 1967. He has placed reliance on a case reported in Smt. Phulbasi v. State 1968 AWR 846 . This is a Division Bench case decided by this Court. He has placed reliance on a case reported in Smt. Phulbasi v. State 1968 AWR 846 . This is a Division Bench case decided by this Court. It has been held in this case that the second proviso to Sub-section (3) of Section 488 Code of Criminal Procedure gives a right to the abandoned wife to recover arrears falling due for a period of one year next before the date of the application. The effect of the proviso is that the wife cannot recover arrears for a period more than one year next before the date of the application. The interpretation as put by the Division Bench does not support the contention raised by the learned Counsel. The expression "the date on which it became due" would only mean that the arrears when ascertained would fall due. It does not mean that the monthly allowance which has been made payable from a particular date will become due within the period of one year from the date of the application for the issue of the warrant without the maintenance allowance having been fixed. A sum can only become due when it is ascertained. Under Sub-clause (2) of Section 488 Code of Criminal Procedure the maintenance allowance becomes payable from the date of the order, or if so ordered from the date of application for maintenance. The expression "shall be payable" in this sub-section means that it would become payable after the ascertainment and not before. 6. If the interpretation put by the learned Counsel is held it will lead to absurd result as for illustration in a case when an application u/s 488 Code of Criminal Procedure remains pending for more than a year and when an order be passed ordering the payment of the allowance from the date of the application the final order u/s 488 Code of Criminal Procedure will become infructuous. The authority relied upon by the learned Counsel also supports my view. It has been laid that the wife cannot recover arrears for a period beyond one year next before the date of the application. The maintenance allowance would fall in arrears when it has been ascertained and not before it and an application Under Sub-clause (3) of Section 488 Code of Criminal Procedure may be filed for the arrears for a period not beyond one year next before the date of the application. The maintenance allowance would fall in arrears when it has been ascertained and not before it and an application Under Sub-clause (3) of Section 488 Code of Criminal Procedure may be filed for the arrears for a period not beyond one year next before the date of the application. I do not agree with the interpretation put by the learned Counsel nor the authority relied upon supports the same. 7. In the circumstances I see no ground to interfere with the order passed by the magistrate. The maintenance allowance arrears of Rs. 758/-, which had fallen due and for which an application was moved by Smt. Manki Devi on 11-7-1968, has correctly been ordered to be realised from the Applicant Ram Narain. I see no illegality or impropriety in the order passed by the magistrate. The revision application is dismissed. The stay order dated 6-1-1972 is vacated. The record be sent back to the court below at an early date.