Decided on November 12,1982

DAULAT RAM Appellant
ISHRI Respondents


- (1.) THIS is husbands revision petition, against whom a composite order of the recovery of maintenance granted in favour of his wife, the respondent herein, in terms of Sec. 488 Cr. Procedure Code by attachment and sale of his property and of sentencing him to simple imprisonment in default of payment of the said maintenance, has been passed by the trial Magistrate.
(2.) THE respondent brought an application for maintenance against her husband, the petitioner herein, on 21 -7 -1976 in the court of Sub Judge, Judicial Magistrate, Kishtwar. This application was allowed by the court 30 -5 -1979, granting monthly maintenance Rs. 80/ - in her favour with effect from the date of the application itself. The petitioner not having paid any maintenance to her despite the order passed by the court, she filed an execution application on 25 -4 -1980, claiming arrears of maintenance from 22 -7 -1976 to 21 -4 -1979. During the pendency of this execution application, the parties entered into a compromise on 9 -6 -1980, according to which the petitioner undertook to pay a sum of Rs. 100/ - to the respondent on 30 -6 - 1980, and further undertook to pay to her Rs.100/ per month, till the entire arrears were liquidated. He still did no pay any sum to her, and the respondent was thus obliged to bring a second execution application against him on 30 -7 -1980. Both their applications were heard by the trial Magistrate, and were disposed of by him by his order dated 22 -9 -1980, which has been impugned in this revision petition. The trial Magistrate rejected the plea in opposition raised on behalf of petitioner that the respondent had lived and cohabited with him after the order of maintenance dated 30 -5 -1979 came to be passed against him. He also rejected his offer to maintain his wife on the condition that she lived with him the on the ground that he had taken a second wife. The Magistrate consequently leived a sum of Rs 3,760/ - i.e. Rs. 3,680/ - for the period between 22 -7 -1976, and a further sum of Rs.80/ - for the month of June 1980 and not only ordered it to be recovered by attachment and sale of his property, but also a sentenced the petitioner to simple imprisonment for a period of fifteen days in default of payment of the aforesaid sum.
(3.) APPEARING for the petitioner, Mr. Hardesh has assailed the aforesaid order on three grounds: firstly, that the trial court had no power to make a composite order directing recovery of arrears of maintenance by attachment and sale of the petitioners property, and at the same sentencing him to imprisonment for default of payment; secondly that he could not have ordered recovery of Rs. 80/ - on account of maintenance due for the month of June 1980, when this sum had not been claimed by the respondent herself in her application dated 30 -7 -1980; and thirdly; that arrears beyond the period of one year from 30 -7 -1980 could not have been claimed by the respondent. So far as the second ground is concerned, it has been conceded by Mr. Kotwal, and rightly so, that the trial Magistrate could not have ordered the recovery Rs. 80/ - on account of maintenance for the month of June 1980. No prayer was made by the respondent in her application dated 30 -7 -1980, seeking recovery of maintenance for the month of June Consequently, the trial Magistrate could not have levied this sum also and issued a warrant for its recovery. The impugned order to this extent, is, therefore, bad.;

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