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1 - 7 of 7 (0.21 seconds)Pt. Shyama Charan vs Mt. Anguri Devi on 3 February, 1938
4. This wording shows that in every case it is the duty of the Magistrate to find out whether the person ordered to pay maintenance under Section 488 has or has not failed without sufficient cause to comply with the order. Neither the protection order nor the adjudication order could be conclusive on this point. The question is one of fact which the Magistrate has to decide for himself. Prima facie, of course, it would appear to a Magistrate that an order of protection or an order of adjudication would be sufficient to show that failure to comply with an order to pay maintenance-had not been without sufficient cause, but it cannot be said that the Magistrate's hands would be tied by the order of the Insolvency Court. Learned Counsel for the petitioner has referred us to the decision of Mr. Justice Wadsworth reported in Yahia In re (1936) 71 M.L.J. 430. That has no bearing upon the point before us. The learned Judge has held that arrears of maintenance payable in respect of magisterial order under Section 488, Criminal Procedure Code, constituted a 'debt or liability provable in insolvency' within the meaning of Section 46(3) of the Presidency Towns Insolvency Act. The learned Judge has not anywhere suggested that a protection order issued by an insolvency Court would necessarily be conclusive for a Magistrate making an inquiry under Section 488(3), Criminal Procedure Code. The matter has been dealt with very clearly by Mr. Justice Allsop of the Allahabad High Court in the case reported in Shyama Charan v. Anguri Devi I.L.R. (1938) All. 486. The learned Judge has said:
The Code of Civil Procedure, 1908
Section 23 in The Provincial Insolvency Act, 1920 [Entire Act]
Section 60 in The Provincial Insolvency Act, 1920 [Entire Act]
In Re: Tokee Bibee vs Abdool Khan on 18 December, 1879
2. The contention on behalf of the petitioner is that the protection order passed by the Insolvency Court is a decision of a competent Civil Court within the meaning of Section 489(2), Criminal Procedure Code, in consequence of which the Joint Magistrate is compelled to cancel the sentence of imprisonment passed upon this petitioner. There is no authority for this contention. Learned Counsel for the petitioner has referred us to the cases reported in Tokee Bibi v. Abdool Khan (1879) I.L.R. 5 Cal.
Mr. Halfhide vs Mrs. Halfhide on 25 April, 1923
536 and Halfhide v. Halfhide (1923) I.L.R. 50 Cal. 867. But we do not think that they have any application. In the earlier case there was no sentence of imprisonment passed at all. In the second case, the protection order had been issued before the sentence of imprisonment was passed, and after the sentence of imprisonment was passed, an adjudication order had been passed and the protection order, continued until discharge. Their Lordships of the Calcutta High Court said:
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