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Hashim HussaIn Vs. Smt. Rukaiya Bano - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1979CriLJ1143
AppellantHashim Hussain
RespondentSmt. Rukaiya Bano
Excerpt:
- - the fifth clause and the last clause of the compromise was that in the event of failure of the husband in implementing the terms of the compromise he would pay a monthly allowance of rs. having failed to do so the order dated 2nd september 1975 cannot be executed under section 125(3) cr. 200/-per month, which is well within the limit permissible under the section. they have been clearly specified. if hashim hussain was not satisfied with the compromise and found it defective for some reason or the other, he could have challenged the same by way of a revision or an application under section 482, cr. he has found that hashim husain had neglected and failed to maintain, his wife......the maintenance is decided in terms of the compromise.2. according to the case of shrimati rukaiya bano, hashim husain did not comply with the terms of the compromise and as such she filed an application on 7-7-1976 under section 125(3) cr. p.c. for execution of the order of the magistrate dated 2-9-1975 claiming a monthly allowance of rs. 200/- for her maintenance and praying that warrants be issued against hashim hussain for the recovery of the amount. this application has been allowed by the judicial magistrate nawabganj, bareilly on 9th may 1977. hence this revision.3. i have heard counsel for the parties and have also perused the impugned orders carefully. learned counsel for the applicant has submitted that the order of the magistrate dated 2nd september, 1975 is a very cryptic.....
Judgment:
ORDER

P.N. Bakshi, J.

1. An application was filed by Shrimati Rukaiya Bano under Section 125, Cr. P.C. claiming maintenance allowance from her husband Hashim Hussain, While these proceedings were pending before the trial court parties arrived at a compromise on 2nd September 1975. The compromise contained five clauses. The substance of the compromise which has been referred to in detail in the order of the Judicial Magistrate, Bareilly was that Hashim Hussain accepted the case of Shrimati Rukaiya Bano, He agreed that in future he would not harass her and would maintain her with food and clothing and that he will keep her with him and would not cause any inconvenience. He also agreed to transfer nine Bighas of land situate in Tahsil Nawabganj, district Bareilly in her favour. The fifth clause and the last clause of the compromise was that in the event of failure of the husband in implementing the terms of the compromise he would pay a monthly allowance of Rs. 200/- for the maintenance of Shrimati Rukaiya Bano. On this compromise the Judicial Magistrate, Bareilly passed an order on 2-9-1975 to the effect that (sic) '...Parties appeared and have filed a compromise. His application for the maintenance is decided in terms of the compromise.

2. According to the case of Shrimati Rukaiya Bano, Hashim Husain did not comply with the terms of the compromise and as such she filed an application on 7-7-1976 under Section 125(3) Cr. P.C. for execution of the order of the Magistrate dated 2-9-1975 claiming a monthly allowance of Rs. 200/- for her maintenance and praying that warrants be issued against Hashim Hussain for the recovery of the amount. This application has been allowed by the Judicial Magistrate Nawabganj, Bareilly on 9th May 1977. Hence this revision.

3. I have heard counsel for the parties and have also perused the impugned orders carefully. Learned counsel for the applicant has submitted that the order of the Magistrate dated 2nd September, 1975 is a very cryptic order. He should have passed a complete and specific order issuing directions. Having failed to do so the order dated 2nd September 1975 cannot be executed under Section 125(3) Cr. P.C. On the other hand the counsel for the opposite party urged that the order dated 2nd September 1975 is an order in accordance with law. It was never challenged by Hashim Hussain either by way of a revision or an application under Section 482, Cr. P.C. Therefore, it has become final and is binding between the parties. Its correctness and validity cannot be questioned now at this belated stage.

4. I have given my anxious consideration to the respective submission of the learned Counsel for the parties. It is not disputed that a compromise was arrived at on 2nd September 1975 between the husband and the wife. It is not disputed that this compromise was filed in court. It is clear from the terms of the compormise that Hashim Husain had admitted the case set forward by Shrimati Rukaiya Bano and had agreed to keep her with him and to maintain her by supplying her clothes and food and by treating her respectfully. He had also agreed to transfer a part of the land owned by him in her favour. All these conditions were imposed upon Hashim Husain. They had to be complied with by him. Clause 6 included a contingency whereby Hashim Hussain was to pay Rupees 200/-per month as maintenance allowance to his wife in the event of breach of the conditions of the compromise by him, From the order of the Judicial Magistrate dated 2-9-1977, referred to above, it is also clear that he had decided the application for maintenance filed by Shrimati Rukaiya Bano in terms of the compromise. It obviously means that the terms of the compromise formed a part of the order of the Magistrate. Section 125 Cr. P.C. does not prescribe any particular form in which the final order of the Magistrate should be passed while granting maintenance allowance to the wife. The only restriction placed is that the maintenance allowance should not exceed a sum of Rs. 500/-. In the instant case the husband has agreed to take back the wife and to maintain her and to look after her, failing which he has incurred a liability of payment of Rs. 200/-per month, which is well within the limit permissible under the section. It was open to the Magistrate while deciding the case in terms of the compromise to specify each and every condition in his order which was included in the compromise. But when he has mentioned that the case is decided 'in terms of the compromise' it obviously implies a direction that each and every condition incorporated in the compromise shall be a part of the order and binding upon the parties. No other inference is reasonably possible. The terms and conditions of the compromise are not in any manner vague. They have been clearly specified. As such, I am of the opinion that the order passed by the Magistrate on 2nd September 1975 is a valid order passed in accordance with law, under Section 125(1) Cr. P.C.

5. In this very connection it may be mentioned that the compromise has been filed on 2nd September 1975 on which the Judicial Magistrate had passed the impugned order. If Hashim Hussain was not satisfied with the compromise and found it defective for some reason or the other, he could have challenged the same by way of a revision or an application under Section 482, Cr. P.C. Not having clone so, it is not open to him to challenge the order now after having committed its breach, as found by the courts below.

6. Learned counsel for the applicant has argued that no conditional order can be passed under Section 125 Cr. P.C. The compromise was to the effect that if its terms were not carried out then Shrimati Rukaiya Bano would be entitled to a monthly maintenance allowance of Rupees 200/-. In Sub-section (3) of Section 125, Cr. P.C. if a person fails without sufficient cause to comply with the order passed by the Magistrate, then the Magistrate is authorised for every breach of the order to issue a warrant for levying the amount due in the manner provided for levying fines. Reading the compromise in the light of Section 125(3) Cr. P.C. it is manifest that if the conditions of the compromise are not complied with then in that case Shrimati Rukaiya Bano would be entitled to apply for execution of the order under Section 125(3) Cr. P.C. and the Magistrate would have jurisdiction to enforce its compliance by issue of warrant, I do not find any justification for the submission that an order passed upon a compromise, which the learned Counsel for the applicant terms as conditional order is not contemplated and cannot be passed under Section 125(1) Cr. P.C. It is really the pith and the substance of the order which has to be taken into consideration and not the form in which it is passed.

7. I find from a perusal of the order of the Judicial Magistrate dated 9th May 1977 which has been challenged in this revision that he has dealt with all the allegations made by Shrimati Rukaiya Bano pertaining to the breach of the conditions of the order passed in terms of the compromise. He has found that Hashim Husain had neglected and failed to maintain, his wife. Not only that a further finding has been given by him on the allegations made by Shrimati Rukaiya Bano that Hashim Husain had entered into a second marriage. From the Explanation to Section 125(3) Cr. P.C. it is clear that if the husband has contracted another marriage, it shall be considered to be a just ground for the wife's refusal to live with him. Learned counsel has urged that this ground was not included in the compromise. That is correct. But this is an additional ground which can be taken even in proceedings for execution of the order under Section 125(3) Cr. P.C. Moreover, as I have mentioned above, the trial court has found that Hashim Husain has committed a breach of the terms of the compromise entered into between the parties on 2nd September 1975, as such I do not find any illegality in the impugned order passed by the Magistrate under Section 125(3) Cr. P.C. on 9th May 1977.

8. For the reasons given above this revision application is hereby dismissed.


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