' Mst. Naseem Akhtar, wife and Muhammad Saleem and Shamim Akhtar, minor children of the petitioner, applied to the Magistrate 1st Class, Mirpur, for grant of maintenance allowance under Section 488, Cr.P.C. The application was moved on August 10, 1986. The learned Additional District Magistrate Mirpur granted the application to the extent of minor children and allowed maintenance allowance @ Rs.200 each per month, w.e.f. The date of the application. The order was passed on November 30, 1987. An application to enforce the order of maintenance allowance passed by the A.D.M. Was moved first before the A.D.C. (General)
Magistrate Ist Class, and subsequently before the District Magistrate on April 26, 1989. The learned District Magistrate forwarded the case to the Sub-Judge Magistrate 1st Class, on the same day for enforcement of the order relating to payment of arrears of maintenance allowance. The Magistrate issued the warrant vide impugned order on April 26, 1989 and adjourned the case to May 11, 1989.
The order was repeated on July 3, 1989. The aforesaid state of facts leads to the inference that in fact, initially the warrant for recovery of arrears of maintenance allowance was issued on April 26, 1989 and not on July 3, 1989 as alleged in the application. Be that as it may, the warrant of recovery issued by the Magistrate was recommended to be set aside for its being violative of the procedure laid down under the Code of Criminal Procedure.. It was explained by the learned Sessions Judge that proceedings were to be carried under the provisions of Section, 386, Cr.P.C. And not in the manner of impugned order.
2. Mr. Abdul Latif Dutt, the learned counsel for the petitioner, argued that the provisions of Section 488(3), Cr.P.C. Contemplate that the order of recovery of maintenance allowance is to be enforced by the Magistrate by issuing a warrant for levying fines, provided under the Code. The provision relating to levying fines, was provided under Section 386 of the Code, as such those provisions were alone to be followed in the matter. The learned Counsel supported the recommendation of the learned Sessions Judge.
3. The proposition raised in the reference confines to enforcement of order of recovery of arrears of maintenance allowance granted in favour of the minors through Mst. Naseem Akhtar, their mother who was having their custody at the moment. It was explained that the non-applicant-petitioner was avoiding to pay the maintenance allowance, whereas the minors having no other means of subsistence and being students were compelled to seek enforcement of the order. It was in the light of the aforesaid prayer of the minors that the impugned order was issued.
4. Subsection (3) of Section 488, Cr.P.C. Applicable to enforcement of order of recovery of the arrears of maintenance allowance contemplated that when any person so ordered to pay maintenance allowance, failed to do so, the Magistrate entrusted with the execution of order of recovery, was empowered to issue a warrant for levying the amount due at the time in the manner provided for levying fines. He was further empowered to sentence the defaulter 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 the payment, if sooner made. The period of limitation applicable to an application to enforce the recovery of arrears was one year from the date on which the maintenance allowance became due.
5. As noticed earlier, the order of payment of arrears of maintenance allowance is to be enforced by the Magistrate in the manner of levying fines. Moreover, the Magistrate was empowered to sentence a defaulter to imprisonment for a term of one month or until the payment if made sooner than the said period. The method of levying fines was provided under Section 386 (1) (a) & (b), Cr.P.C. The Court passing the sentence of fine was empowered to take action for the recovery of fine in either or both of the ways described under clause (a) and (b). Under clause (a), the amount of fine was to be recovered by issuing warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender. Under clause (b), the Magistrate was empowered to issue warrant to the Collector of the District authorising him to realise the amount by execution according to the provisions of Civil Procedure Code, against the movable or immovable property, or both, of the defaulter. The aforesaid procedure, therefore, precisely, leads to the inference that the Magistrate entrusted with the execution of warrant for recovery of arrears under section 488(3) of the Code, was empowered to act in the manner provided under section 386(1)(a) & (b) or under the both. He was further empowered to sentence a defaulter for the whole or any part of each month's maintenance allowance remaining unpaid after the execution of the warrant, to imprisonment for a term of one month or until such time when payment was made earlier than the aforesaid period. In the present case, the learned Magistrate issued the warrant for recovery without specifying the mode by which it was desired to be executed. The order was defective but not without jurisdiction. It is, therefore, set aside.
6. Before parting with the case, it is necessary to lay down that when a Magistrate considers it imperative to enforce the payment of arrears of maintenance allowance by imprisonment and he commits the defaulter to jail, he is empowered to commit him to imprisonment for a term amounting to whole or any part of each month's allowance remaining unpaid after the execution of the warrant. This view finds support from Sardar Muhammad's case AIR 1935 Lahore 758.
7. The other aspect of proposition relating to imprisonment of the defaulter for non-payment of maintenance allowance is that when he is sent to jail, on failure of payment of maintenance allowance, the person who is to be paid allowance, is not ordered to pay expenses for the person committed to jail for his failure to pay maintenance allowance. The aforesaid authority provides ample support to this view.
' The case is, therefore, sent to the learned Sub-Judge, Magistrate 1st Class, Mirpur for proceeding with the application in the light of the aforesaid observations. Parties shall appear before the Sub- Judge, Magistrate Ist Class, Mirpur on January 14, 1991.