Patna High Court
Gupteshwar Pandey vs Smt. Ram Peari Devi on 22 April, 1970
Equivalent citations: AIR1971PAT181, 1971CRILJ774, AIR 1971 PATNA 181, 1971 BLJR 982
JUDGMENT G.N. Prasad, J.
1. This is a husband's application arising in a proceeding under Section 488 of the Code of Criminal Procedure.
2. The opposite party, Smt. Ram Peari Devi filed an application under Section 488(1) of the Code before the Subdivisional Magistrate at Arrah on the 27th April, 1959. That application, after contest, was allowed on the 5th of December, 1960 and it was directed that the petitioner must pay a sum of Rs. 75/- per month to the opposite party on account of her maintenance with effect from the date of her application, namely, the 27th April, 1959. Against the said order, the petitioner moved the sessions court in revision but the revision was summarily rejected by the Sessions Judge on the 17th of January, 1961. Thereafter on the 10th May, 1961, the opposite party filed an application for realisation of a sum of Rs. 1800/- from the petitioner in pursuance of the order passed in her favour on the 5th December, 1960. Notice of this application having not been served on the petitioner in the ordinary course, an order for issue of distress warrant was passed against him on the 17th August, 1961. This was followed by an order of attachment of the joint family properties of the petitioner which was passed on the 25th June, 1962. But on the 24th July, 1962 the father and the brothers of the petitioner appeared before the Subdivisional Magistrate with a prayer for release of the joint family properties from attachment. The said petition was rejected on the 30th July, 1962, whereupon the father and the brothers of the petitioner moved the Sessions Judge for a reference to this Court. Accordingly, a reference was made by the learned Additional Sessions Judge and it was registered in this Court as Criminal Reference No. 15 of 1963. On the 8th August, 1963, the reference was accepted by this Court, the order of the Sub-divisional Magistrate dated the 30th July, 1962 was set aside and it was held that the joint family properties of the petitioner could not be proceeded against in the proceeding under Section 488 of the Code of Criminal Procedure.
3. After the record of the case was returned by this Court to the Sub-divisional Magistrate, the petitioner appeared before him and filed a petition in which he prayed that the proceeding which was being taken against him should be dropped on the ground that he had no property or any source of income of his own. No order, one way or the other, was passed upon this petition of the 2nd January, 1964, but on the 17th February, 1964, the Sub-divisional Magistrate passed an order for attachment of certain properties which were alleged, on behalf of the opposite party to be the separate property of the petitioner. Nearly four years elapsed thereafter without any tangible result and on the 27th January, 1968, an execution report was received from the police to the effect that the petitioner was not in possession of any separate property. Thereupon the Sub-divisional Magistrate took the view that there was no alternative left except to issue a warrant of arrest against the petitioner under the provisions of Section 488(3) of the Code. Even thereafter for several dates the execution report of the warrant of arrest was not received in court. Ultimately on the 27th June, 1968, the Sub-divisional Magistrate recorded the following order:--
"Petitioner -- absent. O. P. It appears that the petitioner has given up the claims for certain reasons.
Hence the proceeding is closed." On the 10th July, 1968, however, the opposite party filed a petition before the learned Subdivisional Magistrate in which she explained the reason for her absence from Court on the 27th June, 1968 and asked for the revival of the proceeding. This prayer of the opposite party was allowed on the 29th July, 1968 on which date following order was passed:--
"The proceeding is revived at the prayer on behalf of the petitioner. Issue w/a non-bailable against O. P. Gupteshwar Pandey under Section 488(3) Cr. P. C. To 29-8-68."
It appears that in pursuance of the non-bailable warrant of arrest referred to in the order of the 29th July, 1968, the petitioner was arrested and produced in Court on the 15th October, 1969, but on the 16th October, 1969, he was admitted to provisional bail under the orders of the Subdivisional Magistrate. Thereafter the petitioner filed the present application in this Court on the 4th November 1969, as an application under Section 561-A of the Code, in which it has been prayed that the proceeding which is pending against the petitioner under Section 488(3) of the Code should be quashed.
4. The first 'ground upon which the validity of the proceeding has been assailed before us on behalf of the petitioner is that the provisions of Section 488 of the Code of Criminal Procedure are ultra vires having regard to Article 15 of the Constitution Clause (1) of which enjoins that State shall not discriminate against any citizen on grounds only of religion, caste, sex, place of birth or any of them. It is urged that the provisions of Section 488 of the Code are discriminatory in favour of women and as such ultra vires of the Constitution. This contention, however, ignores the provisions of Clause (3) of the same Article which lays down in clear terms that nothing in Article 15 shall prevent the State from making any special provision for women and children. Looking at the provisions of Section 488 of the Code of Criminal Procedure, it is abundantly clear that they are special provisions designed for the benefit or protection of a class of women or children who can be regarded as deserted women and children by reason of the omission or failure of the husband or the father to maintain them in spite of being in possession of sufficient means. The view that I have expressed above is in accord with a decision of Somasundaram, J. in Thamsi Goundan v. Kanni Ammal AIR 1952 Mad 529 where after referring to the decision of the Supreme Court in Charanjit Lal v. Union of India. 1951 SCJ 29 = (AIR 1951 SC 41), his Lordship held as follows:--
"Instances can be multiplied without number to show how women have not equal rights with men. That as a class they are weaker than men cannot also be disputed. In fact they are even called by the appellation 'weaker sex'. The very provision in Clause 3 of Article 15, that special provision may be made for women, suggests the existence of disparity. Section 488 is intended to prevent starvation of wives deserted by their husbands. It applies to all women in similar circumstances. Legislation, therefore, in favour of this class of people cannot be said to be arbitrary. The provision, therefore, is not ultra vires of the Constitution."
I may refer in this connection to another provision of the Code of Criminal Procedure namely, provision as to bail contained in Section 497 of the Code which gives power to the court, even in a non-bailable case, to direct a person under the age of 16 years or any woman besides any sick or infirm person to be released on bail. I may also refer in this connection to a decision of the Supreme Court in Yusuf Abdul Aziz v. State of Bombay, AIR 1954 SC 321 where their Lordships had occasion to consider the validity of Section 497 of the Indian Penal Code, the last sentence of which provides that in case of a person indulging in adultery the wife shall not be punishable as an abettor. Repelling the contention that such a provision offended Articles 14 and 15 of the Constitution, their Lordships observed:--
"Article 14 is general and must be read with the other provisions which set out the ambit of fundamental rights. Sex is a sound classification and although there can be no discrimination in general on that ground, the Constitution itself provides for special provisions in the case of women and children. The two Articles read together validate the impugned clause in Section 497, Penal Code." On a parity of reasoning I hold that the provisions of Section 488 of the Code of Criminal Procedure cannot be struck down as invalid under Articles 14 and 15 of the Constitution. This attack against the impugned proceeding must, therefore fail.
5. The second ground upon which the validity of the proceeding has been assailed before us is that the claim for the maintenance sought to be realised from the petitioner has become barred by limitation. Reliance has in this connection been placed upon the second proviso to Sub-section (3) of Section 488 which lays down that no warrant for recovery of any amount due under this section shall be issued unless application is made to the court to levy such amount within a period of one year from the date on which it became due. Our attention has been drawn to the terms of the order passed on the 5th December, 1960, in which the direction made is that the amount of Rs. 75/- per month will be payable to the opposite party with effect from the date of her application namely, the 27th April, 1969. In this connection, I must refer to Sub-section (2) of Section 488 which lays down that the maintenance allowance allowed by the court "shall be payable from the date of the order, or if so ordered from the date of the application for maintenance". It is manifest that the amount could only have become due within the meaning of the second proviso to Sub-section (3) after the order of the 5th December, 1960 had been passed. It cannot reasonably be maintained that the amount had become due even before the claim for the maintenance had been allowed by the court. It cannot be the intention of the legislature that the amount of the maintenance should become barred by limitation simply because the order contemplated by Sub-section (1) of Section 488 has been passed more than one year after the date of the original application. The maintenance became due although with effect from a back date, only when the order of the 5th December, 1960 was passed. Computing the period of one year from the 5th December, 1960 it is quite clear that the application which the opposite party had filed for recovery of the arrears of maintenance from the petitioner on the 10th May, 1961 was well within the period of one year envisaged in the second proviso to Sub-section (3). Thus, there is no force in this challenge to the impugned proceeding.
6. The third ground upon which the proceeding taken by the opposite party for the enforcement of the order of maintenance under Sub-section (3) of Section 488 has been assailed before us is that it was or has been continued without disposing of the objection petition which the petitioner had filed before the Subdivisional Magistrate on the 2nd January, 1964. Sub-section (3) of Section 488 gives jurisdiction to the Magistrate to take requisite steps for the enforcement of the order of maintenance if the person so ordered "fails without sufficient cause to comply with the order". It is no doubt true that the objection petition of the 2nd January. 1964, was not disposed of by the learned Subdivisional Magistrate before passing the order of the 17th February, 1964 or of the 29th July, 1968, but our attention has been drawn to the contents of the said objection petition which indicate that the enforcement of the order of maintenance which had already been passed on the 5th December, 1960, was sought to be challenged by the petitioner on the ground that he had no property or income of his own to be in a position to comply with the court's order of maintenance. In other words, the objections were of the nature which could have been and were in fact taken by the petitioner at the stage when the initial order contemplated by Sub-section (1) of Section 488 was passed. The sufficiency of means was undoubtedly a question which the petitioner could and did raise in answer to the original petition of the 27th April, 1969 and the same disposed of against the petitioner by the order of the 5th December, 1960 which in its turn was upheld by the Sessions Judge on the 17th January, 1961. The precise questions could not be reagitated at the stage when the opposite party sought to ask for enforcement of the order in accordance with Sub-section (3) of Section 488. Sufficient cause as envisaged by Sub-section (3) of Section 488 cannot legitimately be the same cause which the petitioner was called upon to show prior to the passing of the order of the 5th December, 1960. An examination of the scheme of Section 488 will show that Sub-sections (1) and (2) of this section are in the nature of proceedings prior to a decree of the civil court, whereas Sub-Section (3) may be compared to proceedings in execution of such a decree. While executing a decree a civil court cannot go behind the decree and reopen the questions decided between the parties at the stage of rendering the decree. Likewise in a proceeding under Sub-section (3), the Magistrate cannot be called upon to reconsider or go once again into those very questions which could be raised or which were decided at the earlier stage when the claim for maintenance was upheld and a direction for payment of the monthly allowance had been made.
7. The view which I have expressed above is supported by the decision of Imam, J. (as he then was) in Robin Richard v. Mercy Richard, AIR 1959 Pat 489. In that case also a point was taken that when the petitioner had put forward certain grounds for not obeying the order of the court under Sub-section (l) of Section 488, it was necessary for the court to consider those grounds before an order under Sub-section (3) could be passed. His Lordship considered the grounds taken and noticed that all the grounds were in effect in connection with the proceeding under Section 488 and then observed-
"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."
Then after quoting Sub-section (3), his Lordship made the following observation:--
"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".
Then after referring to the petition which was filed in that case, his Lordship concluded-
"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 substance in this point."
With respect, I am in entire agreement with the view thus expressed by Imam, J. As I have already stated, the objection petition which the petitioner had filed on the 2nd January, 1964 was designed to attack the correctness or validity itself of the order of the 5th December, 1960. It did not set out any explanation for not complying with the said order. No reference was made therein of any supervening circumstance or cause having come into existence subsequent to the 5th December, 1960, on account of which the petitioner had become incapable of or was unable to comply with the order of maintenance. Therefore, there was nothing for the Subdivisional Magistrate to consider on the basis of the petition of the 2nd January, 1964 in order to conclude that there was any sufficient cause for non-compliance with the order for maintenance; under these circumstances the Subdivisional Magistrate proceeded specifically disposing of the petitioner's objection petition of the 2nd January, 1964, it would not be right to hold that he was proceeding without jurisdiction or contrary to law. Therefore, this ground of attack against the validity of the proceeding must also fail.
8. Lastly, it was argued that in face of the order recorded by the Sub-divisional Magistrate on the 27th June, 1968, he had no jurisdiction to revive the proceeding as he did by his subsequent order of the 29th July, 1968. The argument is that the effect of the order of the 27th June. 1968, was that the proceeding which was started on the basis of the application of the opposite party dated the 10th May, 1961, had rightly or wrongly been dropped and there is no provision in the Code of Criminal Procedure which could have authorised the Subdivisional Magistrate to revive a proceeding which had lapsed. In my judgment, this argument proceeds upon some misconception of the true import of the order of the 27th June, 1968. A reference to that order, which I have already quoted, will show that the proceeding was not dropped, but directed to be closed meaning thereby that it was directed to be adjourned sine die or like a civil proceeding to be consigned to the record room. Such a direction was apparently made on account of the fact that for several earlier dates the execution report relating to the warrant of arrest which had been directed to be issued on the 27th January, 1968, had not been received and the case was being carried on in the court's diary from one adjourned date to another. The Magistrate appears to have thought it futile to keep the case posted in his diary without any effective action. That is why he directed the proceeding to be closed meaning thereby that it was capable to be reopened at a proper stage either when the execution report which was being long awaited had been received or the parties took some step in the matter. This interpretation of the expression 'closed' which occurs in the order of the 27th June, 1968, does not run counter to the use of the word 'revived' which is to be found in the order of the 29th July, 1968, because in the circumstances under which the order of the 27th June. 1968 was passed, it is clear that the proceeding had not been dropped or finally disposed of for default of action. The expression 'revived' used in the order of the 29th July, 1968 was obviously intended to indicate that the proceeding was being resumed at an application filed by the opposite party. Therefore, it was not a case of reviving a proceeding which had already been disposed of, but of resuming further proceedings in a case which had been adjourned sine die for certain reason. I do not think there is any provision in the Code of Criminal Procedure which could preclude the Subdivisional Magistrate from reopening the proceeding and proceeding therewith in the circumstances mentioned above. I, therefore, overrule this contention also.
9. For the aforesaid reasons, this application fails and it is accordingly dismissed. The interim order passed by this Court on the 5th of July, 1969, is now withdrawn.
Wasiuddin, J.
10. I agree.