N.M. Golvalker, J.
1. This is a reference wider Section 438, Criminal Procedure Code, by the First Additional Sessions Judge, Raipur, recommending that the proceedings before the Magistrate First Class, Raipur, under section 488, Criminal procedure Code, being criminal case No. 61 of 1959 commenced on the application of non applicant No. 2 Mst. Bisahin for award of maintenance, be quashed as the petition itself was not maintainable.
2. The non-applicant No. 1 had raised an objection to the maintainability of the petition on the ground that since a similar petition had been filed, being criminal case No. 11 of 1936 and as in those proceedings a compromise between the parties had been arrived at whereby the husband had undertaken to maintain his wife in the manner amicably Settled, the second petition for grant of maintenance was not maintainable. The Magistrate overruled the objection on the ground that as the previous petition was merely filed and no order was passed incorporating the compromise, the present petition was maintainable. He, therefore, proceeded to enquire into the petition. The learned Additional Sessions Judge before whom the order of the Magistrate; deciding to proceed with the petition, was challenged came to the conclusion that the decision in the previous application under Section 488, Criminal Procedure Code, resulting in the compromise between the parties was a bar to any subsequent application for the same purpose, the remedy of the wife being only to enforce that contract through a civil court. He, therefore, held that the petition was not maintainable and recommended that it may, therefore, be dismissed by quashing the proceedings before the Magistrate First Class.
3. I heard the counsel for both the Parties husband and wife, and in my opinion the recommendations of the learned Additional Sessions Judge cannot be accepted. In the view I take, it the compromise is not given effect to by passing an order in accordance therewith and the petition is simply filed then, in my opinion, the petitioner wife will be deemed to have surrendered her cause of action against her husband and to have agreed to abide by the conduct of her husband thereafter. She would be deemed to have thereby declared to She Court that she did not want to prosecute her petition any longer. She might have said so ex-pressly or allowed the Court to dismiss the petition for want of prosecution. It would simply mean that she has, for the time being, accepted that whatever negligence or refusal there might have been in the past stood condoned, and that she would thereafter enforce the remedy to claim maintenance provided by the Criminal Procedure Code as and when Occasion were to arise. In this view, therefore, any subsequent application by the wife would be nothing but a fresh application in which the conduct of the husband in the Past as also subsequent to the dismissal of the previous One would be enquired into in order to determine if there has been any negligence or refusal on the part of the husband within due meaning of section 488 of the Code. In my opinion the condubt ot the husband before the settlement, resulting, in the dismissal of the previous petition of the wife, Will have to be enquired into as the lapses on his part although condoned by the wife for the time being as stated before, would stand revived if the husband is found to have not adhered to the settlement. I am coming to this conclusion on the basis of similar situations furnished while enforcing law of divorce. There it is well recognised that 'the reinstatement and forgiveness of a guilty spouse if subject to a condition implied by law that he or she shall commit mo further matrimonial offence. It, therefore, a further matrimonial offence is committed, the condonation is cancelled and the old cause of complaint is revived. Such an offences need not necessarily he ejusdem generis as the original offence; nor need the subsequent offence be one entitling the wronged spouse to relief. Although condonation is conditional forgiveness, liable to revival, the further the past offence recede, the more difficult it is to revive them; the time may arrive when the proper inference is that forgiveness is no longer conditional, but has become absolute.' (See Raydan on Divorce 7th Edn. page 217). I do not see why the situations arising in the proceedings under Section 488 of the Code similar to those in divorce proceedings be not considered in the same manner. If, however, the condonation has been too long in the past, it may not be deemed to be conditional but to have become absolute requiring only an enquiry afresh info the conduct of the husband only subsequent to the settlement in order to determine if there has been any negligence or refusal on his part within the meaning of Section 488, Criminal Procedure Code. If, however, in the event of the compromise being accepted and an order in terms thereof being passed, then that order itself would become enforceable under Section 488 of the Code, provided it is of the kind contemplated under that section. There would then be no difficulty in such situation and the subequent application, therefore, would be barred. But if the order is not enforceable being not of the kind contemplated under Section 488 of the Code, and the husband is found to have not adh ed to the terms of that compromise, this non-adherence or non-compliance on the part of the husband would itself furnish a cause of action for the wife to claim maintenance under Section 488 of the Code by filing a fresh application. Thus in both these situations, in my opinion, there would be no impediment in the way of filing of a fresh application or for the matter of that second application by the wife under the Criminal Procedure Code. If any other view is taken it will be easy for a husband to manage to have the dispute settled amicably and to turn round to repudiate that settlement and force the wife to go to the civil Court to enforce that settlement by long drawn process of a civil suit. The very purpose of providing a speedy remedy to the aggrieved wife of children would stand defeated.
4. In the instant case the petitioner wife had filed before me certified copies of the Order that was passed as also the compromise petition filed in criminal case No. 11 of 1936. (Since the certified copies were not now available over again I have retained true copies thereof on record and return-eel the certified copies to the counsel for the petitioner). The order passed by the Court was merely to file the petition which, in my opinion, meant its dismissal. That being the position, the only question which the Magistrate will now be called upon to determine is whether the husband subsequent to the settlement has or has not neglected or refused to maintain his wife so as to furnish a fresh cause of action for her to file the petition in question, the enquiry being kept confined to the conduct of the husband subsequent, to the settlement only as the settlement evidently is age old. The petition could not be held to be barred by the settlement. A similar situation had arisen before this Court in the case of Netram v. Rajjubai, ILR (1949) Nag 435 : (AIR 1949 Nag 337), and it was held there that a compromise between the parties, meaning husband & wife, even though enforceable in a civil Court did not oust the jurisdiction f the criminal Court under Section 488, Criminal Procedure Code, if the husband fails to' act upto that agreement. it was further laid down that anything short of a decree entitling the wife to maintenance is not sufficient to oust such jurisdiction. I respectfully agree with this view as the same, in my opinion, is in full accord with that of mine. In view of that decision of this Court it is not necessary for me to consider the views of other High Courts relied upon by the non-applicant No. ,1, husband.
5. Thus the result is that I hold that thecompromise between the husband and wife in theyear 1936 does not bar the trial of the petition asheld by this Magistrate. Accordingly I reject thisreference and confirm the order of the Magistratewho shall proceed to try the petition in the lightof my observations in this order.