Decided on December 09,1966

ANTHA Appellant
LAKSHMI Respondents


Tukol, J. - (1.)The petitioner in this case is the husband of respondent No. 1 and father of respondents Nos. 2 and 3. There was an order in the proceedings instituted by the respondents under Section 488 of Criminal P.C. for payment of Rs. 50 per month to the respondents for their maintenance. The order is dated 23.11.1965. Respondent No. 1 then filed an application on January 25, 1966 for recovery of the arrears of maintenance due to her and her minor children. The present petitioner appeared through his Lawyer who filed a written statement contending that he was getting a monthly salary of Rs. 100 which was insufficient even for his own maintenance and that he was prepared to maintain the petitioners if they chose to live with him in Bombay. The petitioners stated expressly in their application in the Court below that the husband had no movable or immovable property of his own. The wife who was examined also stated to the same effect and there was no allegation or suggestion in the cross-examination that the husband was possessed of any movable or immovable property. The learned Magistrate ordered that as the present petitioner had committed default in the payment of maintenance amount for 15 months, he should undergo sentence of imprisonment for 15 months, at the rate of one month for each month's default. As regards the offer of the husband to maintain his wife and children, if they chose to join him in Bombay, the wife's refusal to accept the offer was held justified on the ground that deliberate attribution of immorality falsely to a wife amounts to legal cruelty entitling the wife to separate maintenance and residence.
(2.)In the present petition, Mr. Mohandas N. Hegde, learned Counsel appearing for the petitioner, has submitted four points for my consideration and I propose to deal with each of them in the order in which they were submitted.
(3.)The first contention raised by the learned Advocate is that the issue of warrant of imprisonment without first issuing a warrant for attachment and sale of movable was in contravention of Sub-section (3) of Section 488 and that on that account the entire order passed by the Magistrate should be quashed. In support of this contention, he has placed reliance on the decision of the Rangoon High Court in Maung Tun Zan v. Ma Myaing AIR 1941 Rang 247.

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