Anantanarayana Ayyar, J.
1. In M. C. No. 74 of 1966 on the file of the Additional Munaif-Magistrate, Bapatla, Yerukala Kotiah was the sole respondent I shall refer to the parties hereafter in their denomination in the trial Court, Yeru. kula Anjatnrna as petitioner No. 1 and her daughter by respondent viz., petitioner No. 2 (represented by petitioner No. 1 as guardian) prayed foe an order of maintenance under Section 488, Criminal P. C. against the respondent at the rate of Rs. 45/p. m. for petitioner No. 1 and Sa. 30/, per menaem for petitioner No. 2. The respondent did not deny the relationship but raised various contentions denying the right of the two petitioners foe maintenance and disputing the rate of maintenance. Both sides let in evidence.
2. The petition was filed on 24-9-66. Even before the petition was filed, on 24-8-1986 the respondent had executed a registered settlement deed settling certain property on his minor son by petitioner No. 1. In that document he provided as follows; -
I have executed this settlement deed. I shall retain the schedule mentioned items 1, 2 and 3 property in my possession itself till my lifetime and I alone paying the list due to the Government and the taxes etc., due to panchayati shall only enjoy the income thereof without having powers of gift, sale etc. You shall take possession of the schedule mentioned items 1, 2, and 3 property after my lifetime.... Even if during my lifetime you do not become a major and I die even when you were a minor my younger sister's husband...shall act as your guardian and immediately after you pass minority shall deliver possession of the schedule mentioned property and the income balances thereon to you....
2-A. While the proceedings were pending, on 26-10-1966, petitioner No. 1 and the respondent entered into an agreement which provided as follows:
Misunderstandings have arisen between both of us with regard to family life. Therefore this agreement has been executed with the terms that the wet land which is the self acquisition of the first individual...shall be conveyed to the second individual (petitioner No. 1)...by way of a registered deed which shall be got registered by the first individual of us (Respondent)...that the second individual (petitioner) of us shall properly maintain the first individual of us, and that if the first individual of us acts contrary to these arrangements, the first individual shall abide by all the proceedings that may be taken out by the second individual against him... .
3. In the course of the proceedings, the respondent deposed as D. W. 1 that he was not willing to abide by the agreement. The learned Magistrate, after considering the entire evidence, held that the petitioners 1 and 2 were entitled to maintenance and awarded maintenance at the rate of Rs. 35/- p. m. for petitioner No. 1 and Rs. 25/- p. m. for petitioner No. 2.
4. The husband Kotiah filed Cri. R. P. No. 32 of 1967 before the learned First Additional Sessions Judge Guntur. The learned Additional Sessions Judge held that, as regards the quantum of maintenance awarded, he did not see sufficient reason to hold that there was any room for interference by the High Court. He also held that, as regards the right of the wife or daughter (petitioners 1 and 2) for maintenance, the decision of the learned Magistrate was wrong foe the following main reasons:
(1) In view of the settlement deed (Ex. P-1) which has been executed, the only proper course for the Magistrate was to dismiss the petition and not to award any maintenance.
(2) The evidence apart from the settlement viz., oral evidence was not sufficient to hold that the husband neglected to maintain his wife and daughter.
5. As regards ground No. 2, there was the evidence of petitioner No. 1 as P. W. 1 and supported by P. W. 3 who was her maternal uncle. As against their evidence, there was the evidence of the respondent as R. W. 1. The learned Sessions Judge held that it was doubtful whether P. W. 8 was speaking the truth as he was interested and as P. W. 1 did not depose that P. W. 3 knew that she was being beaten by the respondent. He relied on the fact that the respondent executed the settlement deed and that the terms of the settlement deed show that both the parties agreed to live together. On the other hand, the learned Magistrate who had seen the witnesses deposing before him chose to rely on the evidence of P. Ws. in preference to the evidence of the respondent and relied on the fact that the respondent, though he executed the agreement, deposed in the witness box that he was not willing to abide by the agree-merit and that the very fact that the respondent executed the settlement showed that the petitioner was entitled to separate maintenance. I do not agree with the learned Additional Sessions Judge that there was sufficient room for interference with the order of the learned Magistrate or that the evidence of the respondent should be believed in preference to the evidence on the side of the petitioners and to hold that the petitioners are not entitled to maintenance.
6. The learned Magistrate also referred to the contents of Exhibit P-1 whose recitals show that the respondent executed the settlement in favour of the son so as to keep possession of the property and income from it with himself for life and even provided that if he were (respondent) to die during the minority of the son, the mother should be deprived of her right to be the boy's guardian as the natural guardian and that the respondent provided for his sister's husband to be the guardian of the boy. The learned Magistrate observed that this strengthened the contention of petitioner No. 1 that the respondent was acting as a tool in the hands of his sister and mother. Ground (2) is not tenable.
7. Ground No. 1 : - The learned Sessions Judge has stated in paragraph 14 of his order of reference as follows ;-
On the ground that this agreement could not be given effect to as the respondent is not willing to abide by the terms of the agreement, the learned Magistrate of the trial Court has given a go-by to it and passed the Order on the application....
Beyond doubt or dispute, the respondent and petitioner No. 1 entered into agreement (Exhibit P-1) and later on respondent unequivocally declared that he would not abide by the agreement.
In Kent v. Kent AIR 1986 Mad 59 it was observed as follows:
The third contention raised by Mr. Mockett is that there is an order of the Probate, Divorce and Admiralty Division of the High Court in England whereby the petitioner is directed to pay his wife so much alimony per month, and it is seriously urged before me that this order is a bar to an application under Section 488 of the Criminal P. C. It is admitted that the wife finds it impossible to execute the order for alimony against the petitioner who is a planter in the Mysore State. Whether the order is executable or not is immaterial for the present purpose. The section gives jurisdiction to the Magistrate to award maintenance if he is satisfied that a person has neglected or refused to maintain his wife, or child. The existence (of such an order for alimony) is not sufficient to oust the jurisdiction of the Magistrate for a mere order for maintenance is not equivalent to maintaining the wife....
In this particular ease the mere agreement (Exhibit P-1) is not equivalent to maintaining the wife, especially in view of the fact that the respondent has bluntly deposed in his deposition that he was not willing to abide by the agreement.
8. This decision was referred to with approval in Sarswati Debi v. Narayan Das AIR 1932 Cal 698. In that case, it was observed as follows:
Mr. Basu contends that having regard to the fact that there is an agreement between the husband and the wife, that the amount of maintenance should be Rs. 7/- per month, the agreement is enforceable in the Civil Court and the Jurisdiction of the Criminal Courts is ousted. ...
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In the Madras case AIR 1926 Mad 59 there was an offer on the part of the husband to maintain the wife, and it was held that the mere oiler to maintain was not sufficient. It appears that, notwithstanding this agreement, arrears of maintenance for one year accrued, and it appears that the agreement is not being acted upon in that sense, and I am disposed to think that anything short of a decree entitling the wife to maintain is not sufficient to take away the jurisdiction of the Magistrate . . . .
9. In Rama Bai v. Bhoja Rao (1937) Mad W N 640, it was ordered as follows:
The petitioner applied for maintenance from her husband under Section 488, Criminal P.C. Before the case was enquired into the parties filed a joint petition asking the Court to pass an order awarding maintenance at Rs. 20/- a month. The Court instead of doing this dismissed the application on the ground that the parties had compromised the case.
This order cannot be supported as it is obviously contrary to and not in pursuance of the request of the parties....
Obviously the Court felt that when there was an agreement, the Court should pass an order so that it will be able to see that the wife got the amount provided for the compromise, and that the Court should not dismiss the petition making it necessary for the wife to take recourse to a civil Court which is an elaborate procedure and the possibility of her having to remain without maintenance for any amount of time that might intervene between the filing of a suit and the getting of a decree.
10. In Kriahnappa v. Sivagami Achi AIR 1953 Mad 549, the relevant facts are stated as follows:.the husband and wife entered into an arrangement, which has been marked as Ex. D-1, and it is nobody's case that this arrangement was not entered into or that the husband is going behind Ex. D-1.
Ramaswami, J., observed as follows:
There can be no doubt that a magistrate purporting to act under this Section (488, Criminal P. C.) cannot assume the functions of a civil Court and give judgment in accordance with a bond evidencing a compromise entered into between a husband and a wife. Where a claim for maintenance is amicably settled by the parties the Magistrate should simply dismiss the petition, if pending be-fore him.
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In Madras High Court Cri. R. C. No. 489 of 1903 (Mad), a husband and wife came to a settlement outside the Court, whereby the husband consented to maintain the wife. It was held by the High Court that the Magistrate has no longer any power to make an order under this section as it could no longer be said that the husband was refusing to maintain the wife.
11. The full facts of this Criminal R. C. No. 4d9 of 1903 (Mad) are not known. There is no room to believe that in that case the husband was going behind his agreement. In AIR 1953 Mad 549 the husband was not going behind the agreement, Ex. D-1. Obviously he meant to honour the agreement entered into by him and stick to his obligation cast under it. The agreement in that case (Ex, D-1) provided for not only regular payment every year towards maintenance but also pay other lump sums and it recites that a large lump sum had already been paid. In the pre-Sent case the respondent (husband) is not willing to abide by the terms of the agreement. As such, that case was rightly distinguished by the learned Magistrate.
12. The learned Sessions Judge has relied on the decision in AIR 1953 Mad 549; but he failed to take note of the fact that in that case the husband had stood by the compromise agreement and the compromise itself mentioned that a large amount of money had already been paid under that compromise. It was not as if the respondent (in that case) simply entered into an agreement and refused to abide by it. The learned Judge has not referred to the earlier decisions in AIR 1926 Mad 59 and 1937 Mad W N 640.
13. In Syed Bahbood Ali v. Hassanuz Zaman Begum (1957) 2 Andh W R 411 it was observed as follows regarding the contention that a document had been executed which gave cause of action for a civil suit ;
It is next argued that since the husband is alleged to have executed a document which gives a cause of action for the civil suit, the criminal Court should only direct the parties to go to civil Court and dismiss the petition filed.... I am referred to the case of the Lahore High Court in Samsingh v. Mt. Hakam Devi AIR 1930 Lah 524 but the Madras High Court in 1937 Mad W N 640 has held that even if there be a compromise, the petition Will not be dismissed on that ground. Only the agreed quantum of maintenance will be taken into consideration at the time of passing the order.
This Court held that the order for maintenance is maintainable.
14. In Govindasami Mudaliar v. Muthulakshmi Ammal 1966 Cri LJ 732 (Mad) it was held as follows:
The question, whether a decree of civil Court would bar an action under Section 488, Criminal P.C. would depend on the facts and circumstances of each case. There is nothing in Section 488, Criminal P. C. that the existence of a civil Court decree would ipso facto bar a proceeding under that section.... But if a decree passed in the civil Court becomes unexecutable for some reason or other but the wife is able to satisfy the conditions of Section 488, Criminal P. C. she could certainly claim relief under that section.
Smt. Gurdial Kaur v. Jang Singh AIR 1951 Punj 185 was a case where during he pendency of an application under Section 488 Criminal P. C. a compromise was arrived at between the parties according to which the husband agreed to pay cash allowance of Rs. 5/- and various articles in kind. The Magistrate passed an order in terms of that compromise. The learned Judge observed as follows:
It was rightly observed in that case, In re Taralakahmi Manuprasad AIR 1938 Bom 499, that it would be wrong in principle to allow the husband to take advantage of the decree which he has made no attempt to carry out. These observations will apply with a greater force to a mere compromise the order based on which has also been declared to be unenforceable.
These observations would apply with greater force in the present case where the husband has executed an agreement but declared on oath from the box that he was not willing to abide by the agreement. The learned Judge also observed as follows as to whether she agreement entered into during the pendency of the petition would amount to the parties living separately by mutual consent for the purpose of Sub-section (4) of Section 488, Criminal P. C.
Thus if, in such circumstances the wife who is seeking maintenance chooses to live apart, such separate living would not be deemed to be the result of mutual consent. As observed in Rama Saran Das v. Mt. Rampiari AIR 1937 All 115 the words 'mutual consent' as used in Sub-section (4) of Section 488, Criminal P. C. mean a consent on the part of the husband and wife to live apart, no matter what the circumstances may be. In the present case, therefore, the previous compromise by itself cannot be deemed to be an agreement to live separately by mutual consent....
The learned Sessions Judge has relied on a decision in Pal Singh v. Mt. Nihal Kaur AIR 1932 Lah 349. In that case there was an observation which the learned Sessions Judge extracted as follows:.there can be no objection to the parties compromising before a Magistrate by agreeing between themselves as to what is the proper rate of maintenance. This agreement may in itself be sufficient proof that the husband has been neglecting or refusing to maintain his wife or there may be evidence to that effect or an express admission by the husband to the same effect. Where however the compromise is with respect to other matters as well, which do not come within the purview of Section 488, Criminal P.C. or where the com. promise amounts to an agreement to live separately by mutual consent, it seems to me that that compromise cannot be given effect to in a criminal Court; for all that it can do is to make an absolute order fixing a monthly allowance in the circumstances already stated. In such a case it will be the duty of the Magistrate to dismiss the petition under Section 488, Criminal P. C. and to refer the wife to a civil Court to enforce the agreement. ...
This passage itself mentions the fact that the agreement may in itself be a sufficient proof that the husband had been neglecting or refusing to maintain his wife. It also mentions the fact that the criminal Court has (in suitable case) power to make absolute order fixing monthly allowance. The civil Court could not enforce the Compromise in a manner so as to give effect to terms which did not amount to purely granting the fixed monthly allowance. But in such a case the order for maintenance can be allowed as held in 1937 Mal W N 640 and (1957) 2 Andh W R 411.
The effect of various decisions binding on this Court is that a wife's right to be awarded maintenance cannot be taken away by some agreement which is illusory or which the husband has declared or shown himself unwilling to honour it cannot result in the wife getting a fairly quick and ready remedy to maintenance and that a wife should surrender a bird in the hand for the prospect of a bird in the bush. On the facts of this case where the respondent is not willing to abide by the agreement and the wife does not seek to have a remedy as provided in the agreement but only asks for a cash maintenance, the learned Magistrate has certainly jurisdiction to award maintenance under Section 488, Criminal P. C. His order passed accordingly is lawful and proper. I, therefore, reject the reference.