H.R. Khanna, J.
1. This criminal revision filed by Harbans Singh Khosla is directed against the order of learned Additional Sessions Judge, Faridkot, affirming on revision the order of the trial Magistrate whereby the objections of the petitioner were dismissed.
2. The brief facts of the case are that Harbana Singh petitioner is the husband of Gurdev Kaur respondent. During the course of the wedlock, Gurdev Kaur gave birth to two children, Ravinder Singh and Kulwinder Kaur who are both minor. On an application under Section 488 of the Criminal P. C., filed by Gurdev Kaur on her own behalf as well as on behalf of her two minor children, Magistrate I Class, Faridkot, passed an order on 17th May, 1962 directing Harbans Singh petitioner to pay Rs. 136/- per mensem as maintenance allowance for Gurdev Kaur and the two minor children. Perusal of the Order goes to show that it was based upon the statement of Harbans Singh petitioner.
3. As Harbans Singh did not pay the arrears of the maintenance allowance which amounted to Ks 1,625/- in pursuance of the above order, Gurdev Kaur filed an application for realization of the aforesaid amount. Objections were filed on behalf of Harbana Singh in that application that the amount was not recoverable because the compromise in the earlier application under U. 488 of the Criminal P. C., had been brought about by undue influence and coercion. It was also stated that Harbans Singh had filed a civil suit challenging the validity of the order dated 17th May, 1982. Prayer was, accordingly, made that the proceedings for the recovery of the maintenance allowance be stayed till the decision of the civil suit. These objections were dismissed by the trial Magistrate. Revision filed by the petitioner against the order of the trial Magistrate was also dismissed.
4. Mr. Puri on behalf of the petitioner has argued that as the order dated 17th May 1962 for payment of maintenance allowance is based upon compromise the same cannot be executed by a Criminal Court under Section 488 of the Criminal P.C. and the remedy, if any, of the respondents is by means of an action in a civil Court. He has in this context relied upon Sham Singh v. Hakam Devi reported in AIR 1930 Lah. 824. In my opinion, the petitioner can derive no assistance from the above-mentioned authority. In that case an application under Section 488 of the Criminal P. C. was filed in 1907 by Hakam Devi against her husband Sham Singh. During the pendency of that application the parties entered into a compromise and Sham Singh agreed to pay Rs. 5/- per mensem as maintenance allowance to his wife. The Magistrate in terms of that compromise made an order on 29th May 1908, fixing the maintenance allowance at Rs. 5/- per mensem.
Subsequently, in 1929 an application was filed by Hakam Devi praying that in view of the in-crease in prices the maintenance allowance be enhanced from Rs. 5/- to Rs. 15/- per mensem. The learned Magistrate, after issuing notice to the husband, enhanced the maintenance allowance from Rs. 5/- to Rs. 10/- as per order dated 28th June, 1920. it was also noted in that order that Sham Singh respondent was not present. Sham Singh then filed a revision to the Court of District Magistrate who recommended that the order dated 28th June, 1929 increasing the allowance from Rs. 5/- to Rs. 10/. be set aside. It was also observed by the District Magistrate that the order dated 29th way 1908 was not good in law as it had been based upon compromise- When the matter came up before the High Court, Addison J. accepted the recommendation of the District Magistrate and set aside the order dated 28th June, 1929 increasing the maintenance allowance.
The significant fact which emerges from the above facts is that the learned Judge did not quash the earlier order of 29th May 1908 by which the maintenance allowance of Rs. 5/- based upon compromise had been granted in favour of : the wife. This very case came up again before. Addison J. in Hakim Davi v. Sham Singh AIR 1981 Lab. 574. What actually happened was that the trial Magistrate in view of the observations of the District Magistrate questioning the legality of the order dated 29th May 1908 refused to execute the same. Addison J., then observed that the order of 29th nay 1908 having been executed during all these years must be allowed to stand and that it was not intended by him that the order of 29th may 1908 was not enforceable,
5. Another case upon which reliance has, been placed by Mr. Puri is Budhu Earn v. Khem Devi, decided by Dalip Singh J., and reported in AIR 1926 Lah. 469, wherein it was held that once a compromise is entered into to pay maintenance there is no refusal to maintain on the part of the husband. It was, accordingly, held that the pro. per remedy to enforce the compromise is by way of a civil suit. This case was considered by Division Bench (Addison and Dalip Singh JJ.) in Pal Singh v. Nihal Kaur AIR 1932 Lah 349 (2) and it, was held that the observations of Dalip Singh J. in Budhu Ram's case AIR 1926 Lah 469 (supra) had gone too far. The head note, which is based upon the observations in the body of the judgment, reads as under:
In proceedings under Section 488 there can be no objection to the patties compromising before a Magistrate by-agreeing between themselves as to what is the proper rate of maintenance. This agreement may in itself be sufficient proof of negligence on the part of husband. When however the compromise is with respect to other matters as well which do not come within the purview of Section 488, or where the compromise amounts to an agreement to live separately by mutual consent, then that compromise cannot be given effect to in a criminal Court. But if a husband and wife agree at once as to the rate of maintenance without adding conditions which cannot form, part of the order passed under Section 488 the matter can be ended at once by the Magistrate pasting an order in terms of the compromise to the effect that he awards a monthly allowance of such and such an amount, as the compromise by itself will be sufficient evidence of the condition precedent to the application being lodged.
As the compromise in the present case related to the amount of the maintenance allowance and fell strictly within the purview of Section 488 of the Criminal P. C. there is, in my opinion, no bar to the enforceability of the same in the Criminal Court. In Punn Deb v. Mt. Bishnuli : AIR1950All454 , it was held that where, in proceedings under Section 488, the parties have arrived at a compromise as to the amount that should be allowed to the wife, and the Court [asses an order in terms of the compromise, the criminal Court has jurisdiction to enforce its own order even though it is passed on the basis of a compromise.
In Mangayamma v. Appalaswami AIR 1931 Mad 185 (1), Jackson J., while setting aside the order of a Magistrate, who had refused to en. force an order of maintenance on the ground that it was based upon compromise, observed:
The learned Magistrate has refused to piss any such order for reasons which it is not easy to follow. He says that the original order is based on a compromise, that therefore Section 488, Criminal P. C., has no longer any application and that the proper remedy for the petitioner is by way of Civil Courts. Of course if the parties had settled the dispute by themselves without any reference to the Court, there would have been no order under Section 488, Criminal P. C., at all; bat such settlement is evidently not what they contemplated. The husband was prepared to consent to judgment without Riving the petitioner any further trouble so long as her claim for maintenance was reasonable and therefore the Magistrate passed orders in the terms of this agreement, or compromise, a very sensible arrangement which did not in any way detract from the force of the order.
In Debjani Biswas v. Rasik Lal Biswas AIR 1941 Cal 558, it was held that an order lawfully made by a Magistrate under Section 488 of the Criminal P. C., whether on compromise or otherwise must be deemed to be enforceable in the manner provided under flub-s. (S) of Section 488. The above-mentioned two cases, decided by Madras and Calcutta High Courts, were followed by the Hyderabad High Court in Gangar Laxmanna v. Bhojawa AIR 1952 Hyd 150, and it was held that the Criminal Court had jurisdiction to enforce its own order under Section 488 of the Criminal P. C , even though it was based on compromise. Similar view was taken by the Madras High Court in Dr. T.K. Thayumanuvar v. Asanambal Ammal AIR 1958 Mys 190. The matter also came up before Capoor J. in Gurdial Kaur v. Jang Singh AIR 1959 Punj 185. The learned Judge held that the order of the Magistrate was wrong in so far as the had held that a compromise between the parties stood in the way of proceedings under Section 488 of the Criminal P. C.
6. I thus find that there is overwhelming authority for the proposition that if the compromise relating to payment of maintenance allowance falls within the purview of Section 488 of the Criminal P.C. and an order is made on the basis of that compromise by the Magistrate before whom the proceedings under Section 488 are pending, the order can be enforced under Sub-section (3) of Section 488. The reason underlying all these authorities is that if the husband accepts the position, which the wife has otherwise to prove by evidence, the recording of evidence in respect of that matter would be a sheer surplusage and useless formality.
It is not the requirement of the law, in my opinion, that the respondent must controvert the allegations made by his wife or children in an application under 8 488 of the Criminal P. C., and that there must be contest before an order under Section 488 for award of maintenance allowance can be made. The proceedings under Section 488 of the Criminal P. C., are not similar to proceedings relating to the grant of probate or insolvency because unlike those proceedings the order made on an application under Section 488 operates in persona and not as an order in rem.
The proceedings under Section 488 are also not analogous to those in a Court of Divorce because in divorce proceedings the Court has always to guard against a judgment being obtained by collusion. Such consideration can obviously not apply to proceedings under Section 488 wherein the object is to make provision for the maintenance of the neglected wife and children.
As such, on principle, I fail to understand as to how the recording of evidence can be deemed to be an essential prerequisite of the making of an order under Section 488 of the Criminal P. C. I would, therefore, hold that there is no legal bar to the making of an order for payment of maintenance allowance under Section 488 of the Criminal P. C., upon the basis of a compromise arrived at in those proceedings.
7. The petition consequently fails and is dismissed.