G.L. Chopra, J.
1. This petition for revision is directed against an order of Additional Sessions Judge, Ludhiana, maintaining that of Magistrate, 1st Class, Ludhiana, under Section 488, Criminal Procedure Code, granting allowance at the rate of Rs. 10/- per mensem to the respondent.
2. A long-standing dispute and consequent litigation is going on between Ramchand, the petitioner, and his wife, Jiwan Bai, They were married some 25 years ago and had two daughters born to them. Somewhere in the year 1940, Jiwan Bai was turned out by the petitioner. In 1942, she obtained an order under Section 488, Criminal Procedure Code, from a Magistrate at Lyallpur (now in Pakistan), allowing her maintenance at the rate of Rs. 10/- per month. The allowance was subsequently raised to Rs. 25/-. After the partition in 1947, she along with her parents migrated to India, and so did the petitioner. Jiwan Bai then presented an application under Section 488, Criminal Procedure Code, to the Additional District Magistrate, Ludhiana. On persuasion of the petitioner, it is stated, this application was withdrawn.
On 24-11-953, she presented another application for maintenance under the same section in the Court of Mr. Jhangi Ram, Magistrate, First Class, Ludhiana. This application ended in a compromise, according to which Ram Chand undertook to pay Rs. 10/- per mensem as maintenance to his wife. Exhibit D. 1 is a copy of the composition deed. The application was, thereupon, filed. This too had no practical effect; nothing was, in fact, paid to the wife as maintenance. In the meantime, Ram Chand had married a second wife. Jiwan Bai then presented the present application on 5-5-1956, under Section 488, Criminal Procedure Code.
3. On behalf of the petitioner, it is contended (1) that the order of the Magistrate at Lyallpur granting maintenance to the wife stood as a bar to a fresh petition for the same purpose and (2) that a compromise having once been arrived at between the parties, the respondent ought to have got the terms thereof enforced through a civil Court. On the first point, it is submitted that the order for payment of allowance obtained under Section 488, Criminal Procedure Code, from the Magistrate at Lyallpur was still valid and enforceable in the Courts at Ludhiana. Jiwan Bai ought to have got that order executed, instead of presenting a fresh application for fixation and grant of the allowance. A second application for the purpose, it is contended, is barred by application of the general principles of the rule of res judicata.
4. It is correct that, as laid down by their Lordships of the Supreme Court in Kishori Lal v. Sm. Shanti Devi, AIR 1953 SC 441 (A), an order which was good and competent when it was made and which was passed by a tribunal which was domestic at the date of its making and which could, at that date, have been enforced in an Indian Court, does not lose its efficacy by reason of the partition, unless any specific bar to it is created by the Legislature. It follows that the order passed by the Magistrate at Lyallpur under Section 488, Criminal Procedure Code can even now be executed under Section 490 of the Code in the Court at Ludhiana. But that by itself does not mean that a fresh application under Section 488, Criminal Procedure Code, is not competent.
The application would be barred only if there is any specific provision in this connection in the Code. The only provision which bars subsequent proceedings is contained in Section 403. That section bars the second trial of a person who has been convicted or acquitted of an offencc, and where the conviction or acquittal is still in force. A proceeding under Section 488, Criminal Procedure Code, cannot be regarded as a trial for an offence; nor does an order awarding allowance amount to conviction for an offence, within the meaning of the section. An 'Offence' as defined by Section 4(O) of the Criminal Procedure Code, means 'any act or omission made punishable by any law for the time being in force'.
Neglect to maintain one's wife or minor children is not made punishable by any penal law. All that Section 488 lays down is that the husband or the father may be directed to provide for his destitute dependents. The section provides a shorter and speedier remedy to the wife and her children, as compared to the lengthy and somewhat complicated proceedings in a civil Court. In A. W. Khan v. Mt. Zaitunbi, AIR 1950 Nag 45 (B), dismissal of an application under Section 488 for default of the applicant was not regarded as acquittal of the non-applicant and hence a bar to a second application on the same facts. Section 403, Criminal Procedure Code, would, therefore, be no bar to the present application of the respondent.
5. I am also not in agreement with Mr. Manchanda that the general principles of the rules of res indicata can be made applicable to the present case. The proceedings under Section 488, Criminal Procedure Code, are judicial proceedings of a criminal Court and are governed by the Code as such. The proceedings may be of a quasi-civil nature. But that does not mean that the Magistrate dealing with them gets all the powers of a civil Court or that all the rules governing the civil proceedings can be imported. The two cases relied upon by Mr. Manchanda are clearly distinguishable. In the first of them Laraiti v. Ram Dial, ILR 5 All 224 (C), a husband upon whom an order to pay an allowance for the maintenance of his wife had been made, objected to the payment of the allowance on the ground that his wife was living in adultery.
The Magistrate entertaining this objection disallowed it, on the ground that the charge of adultery against the wife was not established. The husband, subsequently, again objected to the payment of the allowance on the same ground, the Magistrate entertaining the second objection allowed it and directed the husband to discontinue naying the allowance. This order of his was based on proof of adultery by the wife before the date of the order of the former Magistrate. It was held that the second Magistrate was wrong in law in re-opening matters already adjudicated upon, and his order directing the discontinuance of the allowance on grounds of facts antecedent to the former Magistrate's order was illegal.
In the second case, Sadr-ud-Din v. Musammat Musahib Khanam 24 Pun Re Cr. 1916 : (AIR 1917 Lah 154) (D), it was held that no second enquiry into the same allegation, which had once already been enquired into and adjudicated upon by a competent Court, was competent. In this case, the wife applied for maintenance alleging cruelty for not living with her husband. Her application was dismissed on the ground that she had failed to prove the alleged cruelty. Subsequently, she presented a fresh application, again alleging the same cruelty. This second application of her's was tried by another Magistrate, who found that cruelty had been proved and granted her prayer for maintenance. Chevis J., following the Allahabad decision, referred to above, observed:
'I have no hesitation in following the Allahabad ruling. To do otherwise would mean that, as I have already pointed out, there would be no finality of decision in such cases when one Magistrate has fully enquired into and adjudicated on a certain charge, and a second Magistrate then holds a further enquiry into the same charge the effect is in practice much the same as if the second Magistrate exercised the rights of an Appellate Court, though of course there is this difference that the parties produce evidence de novo.'
It is clear that in each of these cases the object of the second application was, in a way, to annul or set aside the previous order against the applicant, which could only be done by the Court of appeal or revision. In cases like these, it may not be just or legal for the second Magistrate to give a contrary finding on the basis of the same facts. In the case before me. maintenance was allowed to the wife at the rate of Rs. 10/- and it was subsequently, at her request, raised to Rs. 25/- per month. Now she has been allowed only Rs. 10/-. Under Section 489, Criminal Procedure Code, the Magistrate may, on the application of either party and or. proof of change in circumstances, make such alternation in the allowance as he thinks fit.
Under Sub-section (2), the Magistrate can cancel or vary the order to bring it in accord with the decision of a competent civil Court. Section 490 provides for the enforcement of an order of maintenance, and lays down that the order may be enforced by any Magistrate in any place where the person against whom it is made may be, Jiwan Bai, therefore, could have simply applied for enforcement of the order already made in her favour and also claimed arrears which fell due within one year of the presentation of the application. Assuming, but not holding, that the second application for fixation of allowance did not lie, the most that can be said is that there has been a procedural defect. By this, the petitioner has in no way suffered. No injustice has been done to him, which he may seek to be remedied.
On the other hand, he has in fact gained some advantage, for the maintenance is reduced from Rs. 25/- to Rs. 10/- per mensem and he has not been made liable for the arrears. Long ago, the petitioner contracted a second marriage. That alone shall be considered to be a just ground for the respondent's refusal to live with him. For more than a couple of decades he has been neglecting his first wife. Not only that, he has been, in one way or the other, setting at naught repeated attempts of the respondent to recover maintenance. In the circumstances, there appears to be no justification for any interference in revision merely on the ground of a procedural defect, if there has been any.
6. As regards the second objection, it is contended that after the compromise between the parties in the previous application under Section 488, Criminal Procedure Code, the wife ought to have approached the Civil Court for enforcement of the agreement. The argument is that since the date of the compromise the parties were living separately by mutual consent, which disentitles the wite to receive any allowance from her husband under Subsection (4) of Section 488. The contention has no force. 'Mutual consent' as used in the sub-section means a consent on the part of the husband and the wife to live apart, no matter what the circumstances may be.
Where a wife refused to live with the husband on some special ground, such as cruelty, or the fact that he is keeping another woman or has remarried, it cannot be said that the husband and wife are living apart by mutual consent, Ram Saran Das v. Mt. Ham Piari, AIR 1937 All 115 (E). In Sm. Chameli v. Gajraj Bahadur Gupta, AIR 1954 All 33 (F), it was held that when a husband is unwilling to allow his wife to live with him, or has taken a second wife, the only course open to such wife would be to live apart and if she, under such circumstances, agrees to accept maintenance and live apart, such separate living would not be deemed to be result of mutual consent. The test, therefore, should be to find out if the agreement of separate living and payment of maintenance was the outcome of the desire of both parties independently reached by them, or if one of the parties was forced to submit by circumstances to such agreement.
The matter has recently been considered by Hon'ble the Chief Justice of this Court in Criminal Revision No. 121 of 1956 (Punj) (G). In that case, the agreement arrived at between the parties in the course of Section 488 proceedings was in somewhat similar terms. It was held that an agreement as to what was the proper rate of maintenance does not make Section 488 inapplicable, nor does it mean that it can no longer be said that the husband had neglected or refused to maintain his wife. The same view was taken by Kapur J. in Criminal Revision No. 137 of 1953, D/- 19-2-1954 (Punj) (II). I am in respectful agreement with this view.
7. The facts in the present case are somewhat stronger. It shall be remembered that maintenance at the rate of Rs. 25/- per mensem was allowed to the wife by the Magistrate at Lyallpur. By mutual agreement, the parties reduced it to Rs. 10/- per mensem, as from 24th November, 1953. This did not amount to an agreement to live apart by mutual consent; it was only to settle a dispute as regards the amount to be paid as allowance. The Magistrate before whom the agreement was presented did not pass any order in the case, except that it should be filed. That necessitated a fresh application, which, I do not think, would be barred under Sub-section (4) of Section 488.
8. In the result, the petition is dismissed.