1. The petitioner has come up in revision against the order of the learned City Magistrate, Bangalore, in Criminal Miscellaneous Case No. 393 of 1957, wherein he enhanced the maintenance to be paid by the petitioner from Rs. 8/- to Rs. 50/- per month.
2. In order to appreciate the contentions advanced from the Bar, it is necessary to state the facts of the case briefly.
3. The petitioner married the respondent in about 1913. Later he took a second wife. The respondent filed an application under Section 488 Cr.P.C., as per Cr. Mis. No. 157 of 1938-39 on the file of the learned City Magistrate, Bangalore, claiming maintenance from the petitioner on the ground that he has neglected and refused to maintain her. In the course of the enquiry of the said petition, the parties represented to the Court that they had agreed that the petitioner should pay to the respondent maintenance at the rate of Rs. 10/- per month till his retirement from service and at the rate of Rs. 8/- per month after his retirement.
An order under Section 488 Cr.P.C. was accordingly passed. The petitioner has been paying the respondent at that rate. Now the respondent has come up with an application under Section 489 Cr.P.C. alleging that there has been considerable change of circumstances and hence the rate at which the maintenance had been granted to her should be enhanced. She alleged that the petitioner has now acquired large properties from which he is getting considerable income.
It is also alleged that he is having extensive private practice. At the same time it is urged that the respondent who was depending on her father has now been deprived of that assistance in view of the death of her father. Even her sister who was assisting her is not in a position to do so at present. The learned Magistrate, who went into the matter has been pleased to enhance the rate of maintenance from Rs. 8/- to Rs. 40/- per month.
He has also directed the petitioner to pay the respondent at the rate of Rs. 10/- per month for her medical and clothing expenses. It would he correct to say that he has altered the rate of maintenance from Rs. 8/- to Rs. 50/- per month. He has further directed that the altered rate should be effective from the date of the application of the respondent. Further the petitioner has been directed to pay the respondent a sum of Rs. 258.00 nP. as costs.
4. The petitioner challenges the validity and correctness of this order on several grounds. It is contended on behalf of the petitioner that Section 489 is inapplicable to the facts of the present case. The argument is developed in the following manner : Before an order can be passed under Section 489 Cr.P.C. there must be a valid order under Section 488 Cr.P.C. In the present case the order passed under Section 488 Cr.P.C. is not a valid order as the same was founded on a compromise.
Hence there could be no order under Section 489 Cr.P.C. It is further contended that the learned Magistrate had no jurisdiction to give retrospective effect to his order; nor has he jurisdiction to award costs. The quantum granted by the Magistrate is also disputed, I shall examine these contentions one by one.
5. The plea that the order passed in Cr. Mis. Case No. 157/38-39 is not a valid order, is based on the ground that the same was passed on the basis of a compromise. It is urged that there could be no compromise in an application under Section 488 Cr.P.C. The moment the parties compromise the dispute, the jurisdiction of the Magistrate to try the proceedings is ousted. For this position, reliance is placed on the decision reported in Sham Singh v. Hakam Devi, AIR 1930 Lah 524 (A). In the said case his Lordship Addison J. observed that
'where in an application under Section 488 Cr.P.C. the parties arrive at a compromise the proper course for the Court is to dismiss the application leaving the parties to enforce the compromise in Civil Courts. Such a compromise is a bar to an application under Section 489 Cr.P.C. An order of maintenance passed in accordance with a compromise cannot be enforced by a Criminal Court.'
These observations are clearly obiter. The case was decided on an entirely different point. No reasons are given for the conclusions above referred to. With great respect to the learned Judge, I am unable to find any support for the conclusions in question from the wordings of Section 488 Cr.P.C. In the present case, the wife complained to the Court that her husband had neglected or refused to maintain her. She also claimed that she was entitled to maintain at a particular rate.
Both parties orally represented to the Court that the Court may he pleased to award the maintenance at the rates above mentioned. It is reasonable to infer from these representations that the husband admitted the allegations of the wife that he had neglected or refused to maintain her. Further both the parties thought that the reasonable rate of maintenance could be one suggested by them taking into consideration the income of the husband and the needs of the wife. I see no reason as to why the learned Magistrate could not act on such representations.
Let us take a case where the wife pleads in her petition that her husband had neglected or refused to maintain her and that she is entitled to maintenance at a particular rate, and the husband in his written statement admits that he had refused or neglected to maintain her; further he does not deny that the rate of maintenance claimed by the respondent is a reasonable one or worse still he admits the same, the question for consideration is, can or cannot the Magistrate act on these pleadings and pass an appropriate order under Section 488 Cr.P.C.
Should he still have the farce of an enquiry? It may he noted that an enquiry under Chapter XXXVI Cr.P.C. is a quasi-criminal one. Admission made in the pleadings can be taken into consideration and acted upon. These questions were considered by his Lordship Chandra Reddi J. (as he then was) in the case of G.D. Sundaram v. Ratnavathi Ammal, 1955 Andh WR 441 (B).
After exhaustively reviewing the case law on the subject he came to the conclusion that in an application under Section 488 Cr.P.C. when parties come to an understanding as regards quantum of maintenance it only helps the Magistrate in coming to a conclusion on the question of proper maintenance to be awarded. An order of Court based on such an agreement is valid and can be enforced. When execution is levied against the defaulting party, it is not the compromise that is the subject matter of the execution but the order of the court.
He further held that it is within the competence of a Magistrate to accept those representations and pass an order under Section 488 Cr.P.C. giving effect to the compromise agreed between the parties as to the rate of maintenance. With respect I am in entire agreement with the reasons contained in that decision. The contention of the petitioner on this point is rejected.
6. Coming to the question as to whether the order can be made effective from the date of the petition, it is urged on behalf of the petitioner that whereas under Section 488(2) Cr.P.C. maintenance could be made payable if so ordered by the Court from the date of the application for maintenance, there is no such provision in Section 489, Cr.P.C. Consequently it is urged that the Magistrate has no jurisdiction to give retrospective effect to his order.
In this connection, reliance is also placed on the decision in J.H. Amroon v. Miss R. Sassoon, AIR 1949 Cal 584 (C). In the said case Blank J. held that the Magistrate had no power to order the increased allowance to be paid with effect from the date of the application but only from the date of the order increasing the allowance. But it is urged on behalf of the respondent that Section 489 Cr.P.C. should be read with Section 488 Cr.P.C.
Section 489 Cr.P.C. by itself has no independent existence. The procedure to be followed and effect of the order passed are all provided in Section 488 Cr.P.C. In other words it is contended that section 489 Cr.P.C. is merely a proviso to Section 488(1). There is force in this contention. It will be seen that Section 488(3) provides for the mode in which the order is to be enforced. Similarly under Section 488 (4) the wife will become disentitled to maintenance under certain circumstances.
Section 488 (6) provides for the mode in which the evidence has to be taken. Section 488 (8) specifies the place where the proceedings should be taken. There are no corresponding provisions in Section 489 Cr.P.C. Unless Section 489 Cr.P.C. is read with Section 488 Cr.P.C. and is considered as a part of the same, it is difficult to visualise now the same can be worked out or enforced. In my judgment the appropriate way to consider Section 489 Cr.P.C. is to read the same as a proviso Section 488 (1)Cr.P.C.
So read the other parts of Section 488 will become applicable to the proceeding under Section 489, Cr.P.C. In the case reported in Miralal Valavdas v. Bai Amba : AIR1926Bom419 , their Lordships Maeleod C.J. and Shah J. held that a Magistrate has power to increase the rate of maintenance once awarded, and to direct that the increased rate of maintenance be paid from the date of the application asking for the increase. It is true that no reasons were given in support of that judgment.
Their Lordships merely remarked that under Section 488 Cr.P.C. a Magistrate has power to make the payment payable from the date of the application, and they do not see why he should not have the same power under Section 489 Cr.P.C. Though the reasons given may be open to challenge, I am in agreement with their conclusion for the reasons mentioned by me earlier. But ordinarily an order of this type should be effective only from the date of the order. In order to give retrospective effect to it, there must be special circumstances.
No such circumstances have been brought to my notice in this case. The mere fact that there was some delay in the enquiry of this case is not a sufficient ground to direct the petitioner to pay maintenance at the increased rate from the date of the application. Hence that part of the order of the learned Magistrate is unsustainable and the same is set aside.
7. It is next contended that the Magistrate had no jurisdiction to award costs in the present case. In support of this contention also, reliance is placed on the fact that there is no provision under section 489 Cr.P.C. which authorises the Magistrate to award costs. For the reasons already mentioned, I am of the opinion that Section 489 Cr.P.C. must he considered as a part of Section 488 Cr.P.C. Hence the learned Magistrate had jurisdiction to award the costs in question. He has given good reasons for so awarding. I decline to interfere with the discretion of the learned Magistrate.
8. Lastly it is contended that the rate of maintenance awarded is unduly excessive. By agreement of parties, the petitioner was paying maintenance to the respondent at the rate of Rs. 8/-pcr month. It is urged that there were no sufficient grounds before the learned Magistrate to revise this rate. According to the trial Judge, the petitioner has three sources of income. He is getting Rs. 70/- per month as pension inclusive of dearness allowance. This comes to Rs. 840/- per year.
The learned Magistrate has also come to the conclusion that his yearly income from his immoveable properties is about Rs. 2700/-. He has further come to the conclusion that he is getting about Rs. 1300/- to Rs. 2300/- from his private practice. Whatever private practice he might have had in the past, it is not reasonable to expect that the same will be available in the future. The petitioner is an old man of 72 years of age. He is suffering from diabetes and blood pressure. His eye sight is said to be poor.
His past earnings from private practice has gone to increase his estate and the respondent is having the benefit of the same. Hence it is not proper to take his private practice into consideration while determining the rate of maintenance to he paid by him in future. Hence I take into consideration Rs. 840 received by him as pension and Rs. 2,500/- (after deducting collection charges) as his annual income from immoveable property.
It is to be noted that the petitioner has eight children by his second wife. The second wife is also living. Out of these 8 children, two daughters have been married. Hence at present he will have to maintain his second wife and his six children. Taking all these aspects into consideration, I think the proper order would be to direct the petitioner to pay the respondent a maintenance at the rate of Rs. 25/- per month. This will include medical and clothing charges.
The same will be payable from the date of the order by the learned Magistrate, i.e., 12-4-1958. The order directing the payment of costs by the petitioner is sustained. But there will he no order as to costs in this court. Ordered accordingly.
9. Order accordingly.