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Nathuram Vs. Smt. Ramsri - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Case NumberCriminal Revn. No. 53 of 1963
Judge
Reported inAIR1965All129; 1965CriLJ273
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 488
AppellantNathuram
RespondentSmt. Ramsri
Appellant AdvocateRajeshji Verma, Adv.
Respondent AdvocateA.G.A. and ;S.S. Chandwaria, Adv.
DispositionRevision application allowed
Excerpt:
criminal - order on maintenance allowance - section 488 of criminal procedure code, 1898 - two types of order - application allowed and amount of maintenance determined or application dismissed - magistrate passes an order in terms of compromise and wife goes back to husband - amounts to dismissal - when wife is maltreated subsequently - wife can make another application and cause of action will be fresh one. - .....was mal-treated.10. while commenting upon the questions of law raised, agarwala, j. observed:'the compromise arrived at.....,.., merely denotes that the parties agreed as to the amount that should be paid.... when the compromise is arrived at the court is not bound to give effect to it though it will usually give effect to it after the compromise has been arrived at the court has still to pass ah order. if it passes an order in terms of the compromise, then it is that order and not the compromise that is sought to be enforced subsequently..........' it is thus evident that agarwala, j. laid stress on the order of the court, and not compromise, even though the order was based on and passed in terms of the compromise. a conditional order becomes necessary when the court becomes functus.....
Judgment:
ORDER

D.S. Mathur, J.

1. This is an application in revision by Nathu Ram husband, to challenge the order dated 10-5-1962 of the Sub-Divisional Magistrate, Kas-ganj, whereby he was directed to pay Rs. 25/- per month as maintenance to his wife, Smt. Ram Sri, opposite-party. The material facts, as proved, a finding which cannot be challenged in Revision, are that Nathu Ram remarried another woman during the life-time of Mis wife Smt. Ram Sri, and he also maltreated her whereupon she moved an application under Section 468, Cri. P. C. for the grant o maintenance allowance. The husband and the wife came to terms and filed a compromise deed, certified copy of which is on the record. There appear to be a few inaccuracies in the copy. The compromise appears to have been that Ram Sri wife would go back to her husband and if she were not treated property she would get Rs. 240/- per annum towards maintenance.

2. The Magistrate passed a final order on 5-11-1959 which runs as below:

'Parties have come to terms and have filed compromise. Case is, therefore, decided in terms of the compromise. Complainant has left with her husband as settled between them.'

3. Smt. Ram Sri again left her husband, and on the ground of cruelty and the second wife still living with him, she moved an application for the enforcement of the compromise. However, the Additional District Magistrate directed her to move a fresh application under Section 488, Cri. P. C. She then moved the present application which has been allowed under the impugned order.

4. The main point urged on behalf of the applicant, Nathu Ram, is that a fresh application under Section 488, Cri. P. C. was not maintainable and the only remedy available' to her was either to move the civil Court or to apply to the Magistrate for the execution of the order based on the compromise.

5. A perusal of Section 488, Cri. P. C. shall make it clear that it contemplates of only two kinds of orders. The application can be allowed and the amount of maintenance determined or the application can be dismissed. A Magistrate cannot pass an order not allowing maintenance for the present but to direct that in the event of certain conditions coming into existence maintenance allowance shall be payable. Consequently, the Magistrate's order dated .5-11-1959 shall amount to dismissal of that application under Section 488, Cri P. C. on account of the husband and wife coming to terms and the wife going back to live with her husband When the application under Section 488 had in substance been dismissed, there could be no question of the execution of the order passed thereon. In other words, on the basis of the order, dated 5-11-1959 the Magistrate could not have directed the recovery of the maintenance allowance as agreed upon between the parties.

6. To say that after the parties have come to a compromise, the criminal Court ceases to have jurisdiction, shall be against the law. Section 488, Cri. P. C. gives a summary power to the Magistrate. His orders are not final, in the sense that they can be reconsidered by a civil Court in a suit Instituted by the wife or by the husband. The jurisdiction of the civil Court is unlimited; while the Magistrate can pass an order for the maintenance of the wife and children for the period that no order to the contrary is passed by the Court. In the circumstances, no illegality was committed when the Magistrate took cognizance of the second application under Section 488, Cri. P. C.

7. Any decision in an earlier proceeding shall be binding on the parties, but a relief previously refused can be prayed for and granted on fresh grounds or on similar grounds having come into existence since after the dismissal of the earlier application. Consequently, where an application under Section 488, Cri. P. C. is dismissed on the ground that the husband and the wife had come to terms and the wife had started living with the husband, she can make another application if the husband later refuses or neglects to maintain her. The cause of action would be a fresh one. The fact that the husband had married a second woman prior to the decision of the earlier application under Section 488, Cri. P. C. shall not make any difference. In any ease, this factor is not of any importance as in the instant case the Magistrate recorded the finding, that the wife had been mal-treated.

8. It is contended that the view expressed above is in conflict with an earlier decision of this Court in the case of Punn Deb v. Mt. Bishnuli, : AIR1950All454 . The contention is apparently based upon a reading of the headnote, which, I may say, is not correct. Agarwala, J. nowhere laid down that 'where the parties had arrived at a compromise in proceedings under Section 488 of Cri. P. C. the criminal Court was the proper forum to enforce the compromise' and it was the compromise which was being enforced.

9. It may, at the outset, be observed that the facts of the above case are different. Therein under the compromise the husband agreed to give to his wife a house to live in and half of certain, piece of land by way of maintenance for her and for her son. In the instant case, however, there was no immediate payment for maintenance though maintenance allowance at the rate of Rs. 240/- per annum was payable in the future if the wife was mal-treated.

10. While commenting upon the questions of law raised, Agarwala, J. observed:

'The compromise arrived at.....,.., merely denotes that the parties agreed as to the amount that should be paid.... When the compromise is arrived at the Court is not bound to give effect to it though it will usually give effect to it After the compromise has been arrived at the Court has still to pass ah order. If it passes an order in terms of the compromise, then it is that order and not the compromise that is sought to be enforced subsequently..........'

It is thus evident that Agarwala, J. laid stress on the order of the Court, and not compromise, even though the order was based on and passed in terms of the compromise. A conditional order becomes necessary when the Court becomes functus officio and cannot pass a suitable order in the event of the change of circumstances. But when the Court can entertain a fresh application, it need not pass a conditional order. The compromise arrived at in the instant case between the parties, which was to take effect immediately, was that the wife was to go back to and to live with her husband and for such period , no maintenance allowance was payable. In substance, therefore, the parties agreed that for the time being the application under Section 488, Cri. P. C. be dismissed; and when the Magistrate gave effect to the compromise, he shall be deemed to have dismissed the application under Section 488, Cri. P. C. though leaving it open to the wife to apply afresh in the event of her being maltreated.

11. The second application under Section 488, Cri. P. C. was thus maintainable and it could not be deemed to be for enforcement of the compromise arrived at earlier. It was a fresh application to be disposed of in accordance with the law though the compromise arrived at between the parties earlier was to be given due, weight while determining the amount of maintenance payable to the wife in the event of the application under Section 488, Cri. P. C. being allowed. As there had been no change in the circumstances, Smt. Ram Sri could be awarded maintenance at the rate of Rs. 20/-per month.

12. The learned Advocate for the applicant also placed reliance upon the case of Govindram Narandas v. Ratanbai Nathuram, AIR 1956 Sau. 105 in support of his contention that after the parties had arrived at a compromise, the only remedy available to them was to enforce the compromise in a civil Court and not to move a fresh application under Section 488, Cri. P. C. before a criminal Court. The Saurashtra High Court apparently followed the decisions of the Punjab High Court. The decisions of this Court, specially : AIR1950All454 , do not appear to have been brought to its notice. I am in respectful agreement with the enunciation of law in : AIR1950All454 and am of opinion that the compromise, arrived at earlier did not deprive the Magistrate of the jurisdiction to entertain the second application under Section 488, Cri. P. C.

13. The revision application is hereby allowedin part. The Magistrate's order is maintained except that Smt. Ram Sri shall be entitled to maintenance at Rs. 20/- per month only. It is also made clear that no maintenance allowance can be claimed under the Magistrate's order dated 5-11-1959.


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