1. This is a reference under Section 438, Criminal P.C., made by the learned Sessions Judge of Hooghly. The facts are that one Latifannessa filed an application under Section 488, Criminal P.C., against her husband Shaik Nanu for the maintenance of herself and her children. The order with regard to the younger child was:
The child is to have Rs. 3 per month for its own maintenance until it attains puberty. The parties consent to this.
2. The petitioner was divorced and has married again and the maintenance for the child was not paid. She then applied to the successor of the Magistrate who made the order for its execution. The Magistrate then recorded an order to the effect that as it appeared to him to be improper for a Magistrate to embody the terms of a compromise in an order under Section 488, Criminal P.C., that order could not be enforced. He therefore refused to issue a warrant and referred the petitioner to the Civil Court. The learned Judge is of opinion that this order is erroneous in law and has referred the matter to this Court. No one appears in support of the reference and against it, it is urged on the authority of certain decisions of the Lahore High Court that an order embodying a petition of compromise could not be enforced under Section 488, Criminal P.C.
3. Whatever the validity of this contention may be in an application in revision, direct, ed towards the setting aside of the order passed under Section 488 of the Code, we think that it has no application whatsoever to a case like the present in which the Magistrate refuses to enforce an order made by his own predecessor and in his own Court. For that reason alone we are satisfied that the order made by the Sub-Divisional Officer of Serampore in the present case ought not to be maintained. Further, it should be noted that in the present case the original maintenance proceedings were contested proceedings and the only evidence of a compromise of any kind is the statement in the order itself as quoted above. It does not appear in that order that there was any compromise on the question of the liability of the father to maintain his daughter. All that appears is that the Court decided the amount of the maintenance to be paid and that the parties did not challenge that amount. In the result, this reference must be accepted and the order made by the Sub-Divisional Officer of Serampore must be set aside.
4. I agree.