1. This is a reference by the learned Sessions Judge of Bijnor. Be has recommended that an order passed by a Magistrate under Section 488, Criminal P.C., to enforce the payment of maintenance by Ram Saran Das to his wife Mt. Ram Piari should be set aside. He has relied upon the cases in Pal Singh v. Mt. Nihal Kuar A.I.R. 1932 Lah. 349 and Ram Saran Das Mt. Damodri A.I.R. 1934 Lah. 864 for the proposition that an order for maintenance passed upon a compromise between the husband and wife where it is agreed that maintenance shall be paid on certain conditions is an order which cannot be enforced in a criminal Court. There is certainly support for this proposition in the two cases upon which the learned Judge has relied, but I regret to say that I am unable to see any sufficient reason for thinking that the order of the Magistrate was illegal in the present case.
2. Mt. Ram Piari made an application in the year 1931 that her husband Ram Saran Das should be directed to pay her maintenance. Thereafter on 16th May 1931 the husband and wife made a joint application to the Court in which they said that they were agreed that Ram Saran Das should pay Mt. Ram Piari a sum of Rs. 4 a month for her support provided that she did not go into the service of any other person and provided that she did not go to any other person's house to cook for him. I am told that, that order has been enforced on several occasions by the Magistrate. Finally in February 1936 Mt. Ram Piari made the application which has given rise to these proceedings. She said that Ram Saran Das had not paid her anything since May 1935 and she asked the Magistrate to take action against him to force him to make the monthly payments which were in arrears. The Magistrate passed the order which was required of him and Ram Saran Das then made an application in revision in the Court of the Sessions Judge saying that the criminal Court had no jurisdiction to enforce an order of maintenance in the circumstances of this case.
3. One reason why it was held in the Lahore cases to which I have referred that a criminal Court could not enforce an order of this kind is that Sub-section (4) of Section 488 contains the provision that no wife shall be entitled to receive an allowance from her husband if they are living separately by mutual consent and if there is a compromise in which it is agreed that the woman shall live apart from the man, then it may be said that they are living apart by mutual consent. I do not think that the expression 'mutual consent' is capable of being interpreted in this way. I think the mutual consent as used in the Sub-section (4) of Section 488 means a consent on the part of the husband and wife to live apart no matter what the circumstances may be. Where a wife refuses to live with her husband on some specific ground such as cruelty or the fact that he is keeping another woman, I do not think that it| can be said that the husband and wife are living apart by mutual consent if the husband does not insist that the wife should live with him. If that expression had this meaning, a husband could, I imagine, defeat almost any conceivable application for maintenance under Section 488, Criminal P.C. These applications are made for the most part if not always by women who are living apart from their husbands and who for some reason are unable to live with their husbands. The husband in the first instance may attempt to defeat the claim by saying that he is willing to support his wife if she will live with him, but if it is found that she has good reason for not living with him he can then turn round and defeat the claim by saying that he does not want her and it might then perhaps be said that there was mutual consent to a separation because she did not want to live with her husband and he did not want her to live with him. I do not think that the expression 'mutual consent' can be interpreted in this way.
4. Another reason for holding that the criminal Court had no jurisdiction was that it could not pass a conditional order. Again I do not see that there is any force in this objection. A Magistrate can make an order for maintenance which can be opposed upon the ground that the woman should live with the husband if there is a controversy between the parties upon that point. I can see no reason why the parties should not come to terms on conditions arranged by themselves and that the Magistrate should then not pass an order for maintenance. When the Magistrate comes to enforce the order it will again be open to the husband to show cause why the payment should not be made. Sub-section 3 of 8. 488 begins with the words:
If any person so ordered fails without sufficient cause to comply with the order,...
5. It is obviously intended that the husband may when the Magistrate proposes to enforce payment raise any points which might have been open to him at the time when the original order was made. I think if the husband agreed to pay maintenance on certain conditions and after wards found that those conditions were not satisfied that in itself might be a sufficient cause for non-payment on his part and that the Magistrate for that reason might refuse to enforce his original order.
6. I can see nothing in the provisions of Section 488, Criminal P.C., which would lead to the conclusion that an order for maintenance passed by a Magistrate with the consent of a husband and wife cannot afterwards be enforced. Whether it is or is not to be enforced depends upon the circumstances of the case into which the Magistrate has power to make an enquiry. In the present case the husband promised to pay Rs. 4 a month and it has been found as a fact that the conditions which he laid down, viz. that his wife should not go into service or cook for other people have been obeyed, It has been suggested that on two occasions the husband had said in writing that he was prepared to support his wife if she lived with him and it is argued that the Magistrate has not gone into, this question. The Magistrate however in his order has said that the wife was refusing to live with her husband because he had mistress staying in the house. That would surely be a sufficient reason for the wife to refuse to live with him. In my opinion there is no ground for interference in revision with the order of the Magistrate and I reject the reference.