1. This is a petition filed under Article 226 of the Constitution of India challenging the order dated 30th Sept. 1976 passed by the Additional Sessions Judge, Thane, 'in Criminal Revision Application No. 78 of 1975.
2. Briefly stated the facts leading to this petition are as follows:-
The petitioner who is the wife of respondent No. 1 had filed an application for maintenance Under Section 488 of the Cr.PC 1898, i. e. old Code, being Miscellaneous Application No. 16 of 1963 in the Court of the Judicial Magistrate, First class, Thane. The following order was passed in the said application:-The applicant is entitled to claim maintenance from the opponent at the rate of Rs. 35/- per month. As the applicant and opponent have agreed to stay together upon the condition mentioned in Exh. 9, the applicant to claim such maintenance so long as she is staying with the opponent as per Exh. 9.
It appears that the petitioner could not stay with the respondent-husband since he had kept a mistress. The respondent also did not pay her the maintenance as per the said order, with the result the petitioner, who was staying with her father, filed an application for execution of the maintenance order being Miscellaneous Application No. 6 of 1967. In that application, a compromise purshis was passed and the terms of the compromise were as follows :-
1. The respondent agrees to pay Rs. 35/-per month to the petitioner with effect from Jan. 1967.
2. The respondent pays Rs. 210/- to the petitioner being the arrears of maintenance till the end of June 1967. The petitioner states that she had received the said amount.
3. The respondent agrees to send by Money Order the maintenance regularly with effect from the next month.
4. The petitioner agrees not to refuse the money Order.
The respondent again failed to pay the maintenance after the said compromise. Instead, he filed a Miscellaneous Application being Application No. 14 of 1972 for cancellation of the earlier order of maintenance under the provisions of Section 489 of the Cr.PC on the ground that he was ready and willing to maintain the petitioner and that the petitioner was refusing to stay with him without any sufficient reason. While this application was still pending, the petitioner also filed a Miscellaneous Application being Application No. 5 of 1973 for execution of the maintenance order by issuance of a distress warrant.
3. The application for cancellation of the maintenance order filed by the respondent was decided by the learned Magistrate by his Order dated 15th Oct. 1974 where he held that the respondent had kept a mistress and, therefore, the petitioner was justified in refusing to go and stay with the respondent. He also held that the petitioner was entitled to the maintenance as per the original order. The revision filed by the respondent against this order dismissing his application -also came to be dismissed by the learned Additional Sessions Judge who confirmed both the findings and the order of the learned Judicial Magistrate.
4. Thereafter the application filed by the petitioner, viz. Miscellaneous Application No. 5 of 1973 for execution of the order of maintenance, came to be heard by the learned Judicial Magistrate who appears to be a different Magistrate. The learned Magistrate took the view that there was no original order of maintenance of 1963 produced before him and the order which was sought to be enforced, according to him, was the compromise order in Miscellaneous Application No. 6 of 1967 and, therefore, he refused to grant any relief to the petitioner and thus, by his Order dated 29th Aug. 1975 dismissed the application of the petitioner. The revision filed by the petitioner also met the same fate. The learned Additional Sessions Judge who heard the revision took the view that the original order of maintenance, viz. that of 1963, was a conditional order and since the copy of Exh, 9 accompanying ' that order was not produced, it was not possible to give effect to that order. Hence, by his impugned order dated 30th Sept. 1976, he dismissed the petitioner's petition.
5. We regret to observe that the Courts below have not applied their minds either to the facts or to the law involved in the case. In the first instance, the original order of maintenance which was passed on certain conditions could not have been so passed because, a conditional order of maintenance is not contemplated by the provisions of Section 488 of the Cr.PC One of the strange conditions which was incorporated in the order itself (apart from Ex. 9 which is not before us and, therefore, we are unable to know what were the other conditions incorporated in Exh. 9) was that the petitioner would be entitled to the maintenance of Rs. 35/- per month so long as she stayed with the respondent, which condition was diametrically opposed to] the very scheme and the object of Section 488 of the Cr.PC Hence, the only valid part of the said order was the payment1 of Rs. 35/- per month to the petitioner. In view of the provisions of Section 488 of the Cr.PC the said valid part was clearly severable from the conditions accompanying the said order and was, therefore, executable. What is more, the compromise purshis which was filed in Miscellaneous Application No. 6 of 1967 shows that the respondent admitted his liability to pay the maintenance of Rs, 35/- per month under the original order and agreed to make payment with effect from a date earlier to the date on which the said application for execution was filed, In fact, he paid a sum of Rs. 210/-being the arrears of maintenance from Jan. 1967 to the end of June 1967 and further undertook to make regular payments by Money Order from the next month, i.e. July 1967. If, anything was needed to fasten the liability on the respondent for payment of maintenance under the original order of maintenance passed in 1963, it was this compromise purshis which was filed in the Court and which was solemnly acted upon by the parties. However, the matters did nor rest there and as pointed out above, the respondent's application being Miscellaneous Application No. 14 of 1972 for cancellation of the original order of maintenance came to be dismissed, the Courts specifically holding that the res-. pondent had kept a mistress and, therefore, the petitioner was entitled not to stay with him and claim a separate maintenance. It was also held by the Courts that the petitioner was entitled to the maintenance of Rs. 35/- per month under the original order. In spite of this history of litigation between the parties, the Courts below, for reasons which are patently erroneous and unintelligible, have chosen to throw out the application for execution filed by the petitioner. It is unnecessary to elaborate the erroneous reasoning resorted to by the Courts below. The facts and position of law stated above will show that the impugned order passed by the learned Additional Sessions Judge cannot stand any further scrutiny.
6. We have, therefore, no hesitation in setting aside the impugned order passed by the learned Additional Sessions Judge, Thane, and allowing this petition. The petitioner will be entitled to all the arrears of maintenance claimed by her in her Miscellaneous Application No. 5 of 1973 by issuance of a distress warrant, jf necessary. In view of the recalcitrant attitude taken by the respondent and contumacious defaults indulged in by him, we award the costs of Rs. 500/- to the petitioner. The petitioner will be entitled to execute these costs along with the execution of the arrears of maintenance. The rule is made absolute accordingly.