1. This is a reference made to us by the learned Sessions Judge of the 24-Parganas. The facts are these: The married couple, Rasik Lal Biswas and his wife Debjani Biswas, had matrimonial differences and the wife brought proceedings against the husband in the Court of the second police Magistrate at Sealdah. There were two children of the marriage, both minors, a boy and a girl. Whilst the matter was in the Magistrate's Court the parties composed their differences and presented a petition of compromise under Section 488, Criminal P.C. That petition was as follows:
The humble petition of both the parties, the opposite party Rashiklal Biswas and the petitioner Debjani Biswas for herself and her son Rabindra Nath Biswas minor and her daughter Kumari Amala Biswas also a minor, most respectfully sheweth:
That the above matter has been amicably settled through the intervention of mutual friends on the following terms and conditions:
(a) That the defendant Rashiklal Biswas shall pay Rs. 40 per month to the petitioner Sm. Debjani Biswas or shall deposit the sum in Court from January 1940 in lieu of maintenance for herself and for maintenance and education of her two children abovenamed - the maintenance for January shall be payable on the 27th February 1940.
(b) That each month's allowance shall be payable by the first week of the following month and in default of payment the petitioner Sm. Debjani Biswas shall be at liberty to realize the amount by execution according to law.
(c) That out of the aforesaid sum of Rs. 40, Rs. 25 is fixed for the petitioner Sm. Debjani Biswas and Rs. 7-8-0 for each of the two children who will live with their mother.
It is, therefore, most respectfully prayed that an order be made against the defendant and in favour of the petitioner Sm. Debjani Biswas and her children in accordance with the above terms.
The 23rd February 1940.
2. The original proceedings were begun on 17th November 1939 and were in the form of a rule at the instance of the wife calling upon the husband to provide Rs. 100 per month for the maintenance of herself and the two children. Upon the petition of compromise that I have read out being presented to the Court, the learned Magistrate made this order on 23rd February 1940 : 'Case amicably settled. Petition of compromise filed. Rule discharged.' One would have thought that that provided for a settlement of the affairs of the parties; but unfortunately it did not. The wife after a time sent the two children away to school and the school sent a bill to the husband for their maintenance and tuition. The husband paid the bill and then refused to pay the sum agreed under the terms of settlement. Hence the wife applied to the Court for enforcement of those terms of settlement. The learned Judge has referred the matter to us because there were some conflicting decisions with regard to whether the terms of compromise in a matter of this sort could be enforced by the Court. In my view this matter was quite clear and there would have been no difficulty whatever about it, had the Magistrate who dealt with it originally not been quite so cursory in his recording of the case. On 23rd February 1940, when the terms of settlement were put in and ordered to be filed, the Magistrate ought to have made an order to put the matter beyond doubt and he could have done so in these words : 'Petition of compromise filed. Order in terms of compromise.' That would have meant that there was an order for the payment of the money in the terms of the petition of compromise. That would have put the matter beyond all question and such a course will be the proper procedure in future for a Magistrate to adopt in oases of this kind. Then it would be beyond all doubt that the provisions of Section 488 (3), Criminal P.C., could be invoked in order to secure the carrying out of what the parties had agreed to do.
3. However in this case it is clear from Clause (b) of the terms of settlement that the wife was entitled to have the amount which her husband had agreed to pay realized by 'execution according to law.' The words 'execution according to law' in my view mean in this instance the provisions of Section 488 (3), Criminal P.C. After the husband had agreed to that and to the filing of the terms of compromise in my view it is clear that the Court could levy execution in respect of the amount which the husband had agreed to pay. What he paid in respect of the bill of the school is besides the question. If he chose to pay it, he paid it, it seems to me, without prejudice to the wife's rights under the terms of settlement. I am of the opinion, on a proper consideration of the petition of compromise in this case, that the wife was entitled to Rs. 40 per month paid either to her or into Court. If the money was not paid on the due date either to her or into Court, she was entitled to go to Court and ask for execution under the provisions of Section 488 (3), Criminal P.C. With this explanation the reference is rejected and the papers are returned to the Sessions Judge of the 24-Parganas with a direction that they together with our remarks be forwarded to the Magistrate who is dealing with this matter so that he may deal with it according to law in the light of what we have said.
4. I agree. I would only add that in my opinion an order lawfully made by a Magistrate under Section 488, Criminal P.C., whether on compromise or otherwise, must be deemed to be enforceable in the manner provided by Sub-section (3) of Section 488.