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Ahirani Vali Lakha Vs. Govind Pola - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1953CriLJ83
AppellantAhirani Vali Lakha
RespondentGovind Pola
Cases ReferredRoshan Bano v. Azim
Excerpt:
- - it is clear to our mind that the order of the learned magistrate in so far as it purports to hold that an order in terms of the compromise could not be made is bad. the words 'to make a monthly allowance for the maintenance of his wife or child, at such monthly rate, not exceeding one hundred rupees in the whole' occurring in clause (1) of the section and the words 'any such magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines' in clause (3) of the section clearly seem to import that the magistrate is empowered to pass an order of maintenance in terms of money only......by the opponent. the magistrate rejected the application on the ground that the order of 15.6.50 passed in terms of the compromise was illegal, as it was beyond the scope of the provisions of section 488, criminal p.c. for a magistrate to pass an order in terms of a compromise. bai vali being aggrieved by this order approached the sessions court and the sessions judge has made the present reference on the ground that the magistrate had no right to revise a previous order which was the function of a court of appeal or a court of revision.2. we have heard the learned advocate general as also mr. nanavaty who appears on behalf of the husband. it is clear to our mind that the order of the learned magistrate in so far as it purports to hold that an order in terms of the compromise could not.....
Judgment:

Chhatpar, J.

1. This is a reference from the Sessions Judge, Sorath, which arises out of the following facts: One Ahirani Vali Lakha filed an application dated 6th April 1950, against her husband Aher Govind Pola under Section 488, Criminal P, C. for an order of maintenance of herself and her minor son. On 12.6.50, a compromise petition was filed by the parties and an order was passed by the Court on 15.6.50 in terms of the compromise. On 26.9.50, Bai Vali filed an application before the Magistrate complaining that her husband had not observed the terms of the order and prayed for its enforcement. This application was opposed by the opponent. The Magistrate rejected the application on the ground that the order of 15.6.50 passed in terms of the compromise was illegal, as it was beyond the scope of the provisions of Section 488, Criminal P.C. for a Magistrate to pass an order in terms of a compromise. Bai Vali being aggrieved by this order approached the Sessions Court and the Sessions Judge has made the present reference on the ground that the Magistrate had no right to revise a previous order which was the function of a Court of appeal or a Court of revision.

2. We have heard the learned Advocate General as also Mr. Nanavaty who appears on behalf of the husband. It is clear to our mind that the order of the learned Magistrate in so far as it purports to hold that an order in terms of the compromise could not be made is bad. It is open to parties to proceedings under Section 488, Criminal P.C. to arrive at a compromise as to the amount of the maintenance and request the Magistrate to pass an order in terms thereof. Such an order is not illegal by reason of being passed upon a compromise. We may refer to the case of - Nirmala Bala Devi v. Bejay Pada Ganguly : AIR1933Cal675 , wherein the Calcutta High Court held that an order under Section 488, Criminal P.C. for maintenance based on a compromise between a husband and a wife was not illegal because based on such a compromise. To the same effect is a ruling of the Allahabad High Court given in the case of - Ram Saran Das v. Mt. Ram Piari 0043/1936 : AIR1937All115 . We are, therefore, of the opinion that the ground on which the learned Magistrate refused to pass an order of enforcement of the order is not maintainable.

3. But there is some other objection as to the validity of the order dated 15th June 1950 passed by the Magistrate. This order inter alia provides that the husband is to provide the maintenance partly in the shape of grain and partly in money. This portion of the order appears to us to be beyond the scope of Section 488, Criminal P. C. The words 'to make a monthly allowance for the maintenance of his wife or child, at such monthly rate, not exceeding one hundred rupees in the whole' occurring in Clause (1) of the Section and the words 'any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines' in Clause (3) of the Section clearly seem to import that the Magistrate is empowered to pass an order of maintenance in terms of money only. In this view of ours, we are supported by a ruling of the Bombay High Court given in the case of - Mukta v. Dattu Mahdev 25 Cri LJ 965 (Bom), a ruling of the Madras High Court given in the case of - Viramma v. Narayya 6 Mad 284 and a decision of the Lahore High Court given in the case of - Mt: Roshan Bano v. Azim AIR 1943 Lah 59, wherein it was held that the only order that can be made by a Magistrate under Section 488(1) is the fixing of a cash maintenance for the wife or child.

4. In the present case the Magistrate had ordered that 3/4 maund of grain should be given by the husband to the wife in addition to certain sums of money and when the son grows up this allowance of grain was to be increased to 1 and thereafter to 1 maunds. Since the record is now before us, we think it proper to correct this part of the order dated 15.6.50 passed by the Magistrate in the exercise of our revisional powers in the interests of justice. We consequently modify this order of the Magistrate by substituting Rs. 9/- for 3/4 maund of grain and Rs. 15/- and Rs. 18/- for 1 and 1 maunds of grain mentioned in the order. We have passed this order on the assumption that the fair price of grain at the date of the order was and continues to be Rs. 12/- per maund. If hereafter this price increases or decreases, it will be open to the parties to approach the Court for modification of the order accordingly. We set aside the order of dismissal of the application of the wife and direct the record to go back to the Magistrate with the above modification in the order of 15.6.50 and direct the Magistrate to dispose of the application of the wife in accordance with law.

Shah, C.J.

5. I agree.


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