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Bichhu Mallik Vs. Bimala Dei - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 151 of 1960
Judge
Reported inAIR1962Ori23
ActsProvincial Small Cause Courts Act, 1887 - Schedule - Article - 38; Hindu Law; Code of Criminal Procedure (CrPC) - Sections 488
AppellantBichhu Mallik
RespondentBimala Dei
Appellant AdvocateM.S. Rao, Adv.
Respondent AdvocateP. Kar, Adv.
DispositionPetition allowed
Cases ReferredBalrampur v. Tirbeni Prasad
Excerpt:
.....not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india..........also, provision for maintenance under the hindu law included provision for residence. whether the agreement in suit could be carried into execution in a proceeding under section 488 cr. p. c. is a matter that does not arise for any consideration at present. but there can be no doubt that the stipulations for providing with residence and for supplying cooking materials and utensils relate expressly to maintenance. the very stand taken by the petitioner in his written statement that he is no longer bound by the agreement, since the plaintiff had married again, throws, light on the nature of the agreement forming the cause of action. 4. in the circumstances, i accept the petitioner's contention that the suit is one relating tomaintenance, and as such it could not be takencognizance of by a.....
Judgment:
ORDER

J.K. Misra, J.

1. The petitioner is the younger brother of the deceased husband of the respondent. After the respondent became a widow, she was in keeping of the petitioner and she begot a child through him. Sometime thereafter the petitioner drove out the respondent and did not take any step to maintain the respondent and the child. The respondent filed a petition under Section 488 Cr. P. C. for her maintenance and that of the child, alleging that the petitioner had married her.

A compromise was arrived at in the same proceeding, and the petitioner undertook to pay Rs. 3/- per month towards the maintenance of the child, to pay Rs. 65/- towards the construction of a house, to supply doors and door leaves and to further supply certain cooking materials and utensils to the petitioner. As the petitioner did not keep his promise, the respondent sought to execute the compromise in the criminal court, and got the arrear maintenance provided for the child.

The earlier compromise was modified in some of its terms, and the petitioner again undertook to construct a house for the respondent and the child and to give her some cooking materials and utensils. In pursuance of this agreement, the respondent brought the suit under revision to recover Rs. 125/- from the petitioner towards the cost of the house and the articles referred to in the agreement, The trial Court gave a decree for Rs. 121-8-0, rejecting the petitioner's case that the respondent had married again after the said agreement.

2. While the petitioner took a stand before the trial Court that the said agreement could be enforced only through the criminal court and not in a Civil Court, his present stand is different, and it is to the effect that as the suit related to maintenance, it could not be entertained by a court of small causes, in view of the provisions of Article 38, Schedule II of the Provincial Small Cause Courts Act.

3. Article 38 applies to all suits relating to maintenance, whether based on personal law or on contract, bond or decree (vide Amir Begani v. Amir Bakhsh, 112 Ind Cas 256 (Lah)). Special Manager, Court of Wards, Balrampur v. Tirbeni Prasad, 154 Ind Cas 965: (AIR 1935 Oudh 289) refers to a case where some agreement was arrived at in a proceeding under Section 488 Cr. P, C. anj where a suit was brought to enforce that agreement, and it was laid down that such an agreement related to maintenance.

Under the Hindu Adoption and Maintenance Act, 'maintenance' includes in all cases provision for food, clothing, residence, education, medical attendance and treatment Prior to the said Act also, provision for maintenance under the Hindu law included provision for residence. Whether the agreement in suit could be carried into execution in a proceeding under Section 488 Cr. P. C. is a matter that does not arise for any consideration at present.

But there can be no doubt that the stipulations for providing with residence and for supplying cooking materials and utensils relate expressly to maintenance. The very stand taken by the petitioner in his written statement that he is no longer bound by the agreement, since the plaintiff had married again, throws, light on the nature of the agreement forming the cause of action.

4. In the circumstances, I accept the petitioner's contention that the suit is one relating tomaintenance, and as such it could not be takencognizance of by a Court of Small Causes. Thepetition is, therefore, allowed; but in the circumstances without costs. The plaint be returned forpresentation in the proper Court.


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