Patna High Court
Robin Richard vs Mercy Richard on 28 April, 1958
Equivalent citations: AIR1959PAT489, 1958(6)BLJR538, 1959CRILJ1206, AIR 1959 PATNA 489, ILR 38 PAT 893 1958 BLJR 538, 1958 BLJR 538
ORDER Imam, J.
1. This is an application in revision against the order of the Deputy Commissioner affirming that of the Sub-divisional Magistrate in a proceeding under Section 488, Criminal Procedure Code, It appears that that proceeding was ultimately decided in favour of the opposite party namely, Mercy Richard and thereby she got an order for maintenance of Rs. 45/- a month. Thereafter, it appears that the petitioner appeared before the Sub-divisional Magistrate with a petition stating why he was not able to carry out the orders of the court passed under Section 488, Criminal Procedure Code, directing maintenance to be paid to the opposite party, Mrs. Mercy Richard.
The courts below held that as the order under Section 488, Cr. P. C., was final, as no steps were taken to move the superior court against the said order, it was not open to the court to reconsider the matter. All that could be considered impliedly was whether the petitioner had shown sufficient cause for not obeying the order of the court, namely, to pay the maintenance of Rs. 45/- per month as directed by the Court.
2. It appears that there was a divorce suit brought by the petitioner against the opposite party in 1955. The divorce suit ended in dismissal of the suit in that same year and the application by Mrs. Richard under Section 488, Cr. P. C. was on 23-8-55. An appeal against the order passed in the divorce suit was filed in the High Court on 11-7-55. Thus it is clear that the appeal was preferred in the High Court before the application under Section 488, Criminal Procedure Code, was filed.
3. The first point taken before me is that once an appeal was filed against the order passed in the divorce suit, the jurisdiction of the criminal court to pass an order under Section 488 Cr. P. C. was ousted. For this purpose my attention was drawn to the case of Earnest Frank Cecil v. Sybil Lucretia Cecil, AIR 1955 NUC (All) 3591. This is not a full report but merely a short observation of their Lordships of that High Court which in effect is that if proceedings are pending in a divorce court, it is not open to the wife to move the court under Section 488, Cr. P. C. In my opinion, it is too late to consider this point because in the proceeding under Section 483 Cr. P. C. the petitioner avoided the court altogether. The order of the Sub-divisional Magistrate in this-connection is as follows : --
"In pursuance of a notice from this court the opposite party appeared and petitioned for time to show cause. He was allowed time to do so, but he never appeared thereafter nor did he file any show cause petition. The case has, therefore, been taken up ex parte.
* * * * * It is thus clear that the petitioner deliberately avoided coming to the court in the proceeding under Section 488 of the Code. He thus did not take the advantage and opportunity given to him to put forward this very point that has been put forward before me now. As he has failed to do so, he cannot take the advantage of it now in this criminal revision. In other words, the petitioner cannot take the advantage of his own fault.
I do not for a moment suggest that the decision of the Allahabad High Court is one that I would follow. I have not considered that case because in my opinion the petitioner cannot be permitted to raise this point when he deliberately avoided the proceeding under Section 488, Cr. P. C.
4. The second point taken is that when the petitioner had put forward certain grounds for not obeying the order of the court under Section 488 Cr. P. C. it was necessary for the court to consider those grounds before an order could be passed. I have been through the grounds taken and all grounds in effect are in connection with the proceeding under Section 488, Cr. P. C. Under sub-clause (3) of Section 488, Cr. P. C. the petitioner is required to show cause as to why he had not obeyed the orders of the court and not to challenge the decision of the court whether it was right or otherwise. In this connection I would quote Sub-clause (3) of Section 488, Criminal Procedure Code.
"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 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."
The words "without sufficient cause" obviously refer to whether the explanations for not carrying out the orders of the court are satisfactory or not. If they are not satisfactory, the court will hold that the person so ordered has failed to carry out the order of the court without sufficient cause. It could at that stage neither be challenged nor considered whether the order passed, in the proceeding under Section 488, Cr. P. C. was proper or not.
The proper remedy in that case was to go to the superior court which in the present case was never done. I have seen the petition, as already stated, and nowhere I find any satisfactory statement for not obeying the orders of the court below. In this connection I will refer to a passage in the judgment of the Sub-divisional Magistrate :
"When processes were issued for the realisation of the cost, a petition was filed by Robin Richard on 22-12-1956 praying for recall of the processes on the ground that the order was not maintainable. Amongst the grounds given was that his appeal against the order of Judicial Commissioner dated the 15th April, 1956 is pending before the Hon'ble High Court."
"Robin Richard had not made any appeal against the Sub-Divisional Officer's order dated 22-1-1956. I have already mentioned in my order dated 18-5-1957, that the question of non-maintainability of Sub-Divisional Officer's order dated 22-1-1956, does not arise at all since Robin Richard did not file any appeal."
It will be seen from what I have quoted above that the petition that was filed by Richard Robin on 22-2-1956 was in effect attacking the order for maintenance and not explaining why he was not carrying out the order of the court, namely, giving maintenance to his wife. That being so, there is no substance in this point.
5. The next point taken was that as Mrs. Richard was earning sufficiently, the order for maintenance should be set aside. For this purpose the proper procedure provided for is under Section 489, Criminal Procedure Code, which says as follows:
"On proof of a change in the circumstances of any person receiving under Section 488 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife or child, the magistrate may make such alteration in the allowance as he thinks fit."
Apart from this, it will be noticed however that Section 489, Criminal Procedure Code has provided that a change has to be established by proof and not by the mere ipse dixit of the petitioner. In the present case there is no proof at all that there is a change in the circumstances of Mrs. Richard. No steps were taken in the court below for proving that Mrs. Richard was enjoying a decent income and that she was able to maintain herself. That being so, it is not possible at this stage to enter into the point raised by the learned counsel.
6. No other point was raised during the course of the hearing of this application.
7. The application is accordingly dismissed.