P L D 1958 (W (PLP)

Respondent in person. Date of hearing: 5th June 1958. This is a petition by Anwar Shah under section 561‑A of the Code of . Criminal Procedure for quashing of the execution proceedings pending against him in the Court of Sheikh Ali Zulqarnain, Magistrate 1st Class, Sheikhupura.

2. The facts of the ease giving rise to this petition are these. On the 5th of August, 1955, Mst. Kaneez Fatima, wife of the petitioner, filed an application under section 488 of the Code of Criminal Procedure for the grant of maintenance allowance. The petitioner contested the application, but by his order dated the 4th of August, 1956, the learned Magistrate ordered the petitioner to pay Rs. 25 per month to Feroze Ali Shah respondent, father of Mst. Kaneez Fatima, from the date of her application. The petitioner failed to pay the allowance. Mst. Kaneez Fatima then moved the Court on the 17th of September, 1956, for the enforcement of the order. The peti tioner, in the meantime, filed a revision petition in the Court of the Additional Sessions Judge, Sheikhupura, against the order of the Magistrate granting maintenance allowance and obtained a stay order. The revision petition was, however, consigned to the record room on the 9th of November, 1956, on the statement of the counsel for the petitioner that it had become infructuous. It appears that by that time Mst. Kaneez Fatima had died. But this order of the learned Additional Sessions Judge was not conveyed to the Court below till the 29th of January, 1958, and consequently the proceedings lingered on without any further action being taken. Then, the petitioner appeared before the Court and pleaded that Mst. Kaneez Fatima had compromised with him and had given up her claim in, respect of the arrears of maintenance.. The learned Magis trate by his order dated the 8th of April, 1958, rejected the plea of the petitioner and ordered that the maintenance allowance from the date of the order till the death of Mst. Kaneez Fatima should be recovered, and paid to Feroze Ali Shah respondent.

3. The sole point which requires determination is whether by reason of the death of Mst. Kaneez Fatima, the claim to arrears of maintenance is any more enforceable. There does not appear to be any reported case directly bearing on the point which has now arisen in this case. The matter, therefore, rests purely on the interpretation of section 488 of the Code of Criminal Procedure. The object of the proceedings under this section is to provide a speedy remedy by compelling the husband or the father to support his wife or child. It is a statutory right recognised by the Legislature for the benefit of the ,wife or the child as the case may be. By subsection (3) of this sec tion the Magistrate is empowered to enforce the order by issuing a warrant for levying the amount due in the manner provided in the Code for levying fines and is further empowered to sentence the husband or the father to imprisonment for a term which may extend to one month, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant. The second proviso to subsection (3), however, lays down that no warrant shall be issued for the recovery of any amount due under this section, unless application be made to the Court to levy such amount within a period of one year from the date on which it became due. It is, therefore, evident, that even the wife and the child cannot recover the arrears by the process of the Court, if they allow the arrears to accumulate for more than a year from the date when such amounts fell due. The language of the section makes it per fectly clear that the right to maintenance is a personal right, and the obligation to maintain subsists so long as the relationship A between the parties subsists. The death of the husband or the father, makes the order inoperative and the claim in respect of the arrears becomes unenforceable against the estate of the deceased. There is some authority in support of this proposi tion. It was held in Ead Ali v. Lal Bibi (41 Cal. 88) by a Division Bench of the Calcutta High Court that an order of a Magis trate passed under section 488 of the Code of Criminal Procedure for maintenance of the wife is not enforceable after the death of the husband and the wife cannot recover the arrears from the estate of the deceased husband. This ruling was followed by Almond, J. C. and Mir Ahmad J. in Hari Singh v. Mst. Gulab Devi (A I R 1944 Pesh. 6). I am in respectful agreement with the principle laid down in these rulings.

4. Although these rulings do not specifically cover the point involved in the instant case, yet they do throw some light on the subject. If the estate of the husband is not liable) for arrears of maintenance after his death, how can anyone realise the arrears from the husband after' the death of the wife in whose favour the order for maintenance had been passed.

5. Strictly speaking the right to maintenance under section 488 of the Code of Criminal Procedure is determined without reference to the personal law of the parties, but in this connection some useful guidance can be obtained from the Muslim Law, in order to find out whether arrears of maintenance can be realised after the death of either the husband or the wife. This point is dealt with in Hamilton's Hedaya (2nd Edition) at page

143. It reads as follows :‑ " Arrears of a decreed maintenance drop in case of the death of either party.‑If the Kazee decree a wife her maintenance, and a length of time elapse without her receiving any and the husband should die, her maintenance drops ; and the rule is the same if she should die ; because maintenance is a gratuity, respecting which the rule is that it drops in consequence of death, like a gift, which is annulled by the decease of either the donor or donee before seisin being made by the latter ".

6. This shows that under the Muslim Law, the claim to arrears of maintenance becomes unenforceable after the death of the wife.

7. For the aforesaid reasons, I am inclined to hold that on the death of either party to a proceedings under section 488 C of the Code of Criminal Procedure, the order whereby maintenance allowance is granted, becomes inoperative, and thereafter cannot be enforced. In the present case, it is true that the learned Magistrate had directed the petitioner to pay Rs. 25 per month to the respondent, but it was obviously intended to be paid to Mst. Kaneez Fatima. It did not confer any right upon Feroze Ali Shah respondent to realise the maintenance allowance in his own right. He could of course realise it on behalf of his daughter, Mst. Kaneez Fatima, so long as the right to realise the amount accrued to her. But as soon as her right came to an end on her death, the respondent automatically lost the right to enforce the order any longer. In this view of the matter it will be an abuse of the process of the Court, if the execu tion proceedings are allowed to continue. I accordingly quash the proceedings and set aside the order of the learned Magistrate, dated the Stn of April, 1958. K. B. A. Proceedings quashed: Order set aside.