1. This is a Reference under Section 438 of the Code of Criminal Procedure made by the Sessions Judge of Burdwan. It relates to proceedings under Section 488 of the Code of Criminal Procedure instituted by one Parul Bala Debi against her husband, Satish Chandra Bhattacharjee. It appears that there were some proceedings of this nature which were infructuous and were struck off by the Sub-Divisional Magistrate on the 2nd April 1915; but the lady after that made another application on the 8th July 1915 which resulted in the Sub-Divisional Magistrate's making, on the 14th September 1915, an order in her favour directing the husband to pay her maintenance at the rate of Rs. 10 per month, The husband, it appears, is employed by the East Indian Railway Company. He was, at the time when the proceedings were instituted, in receipt of a monthly salary of Rs. 45 which has now risen to Rs. 76 a month. The lady was at the time residing elsewhere, but towards the end of the year 1918, she returned to her husband and lived with him for a few months. While she was staying with him, a petition was filed in the Court of the Magistrate on the 24th January 1918 in which the lady purports to relinquish her claim for maintenance. The order made upon this petition by the Magistrate was that it should be filed with the record. It further appears that the lady left her husband soon after this, and on the 24th March 1919, she made a further application to the Magistrate for the payment of arrears of maintenance for one year. On the 12th April 1919, both parties put in a petition in which they agreed that the present petitioner should pay his wife Rs. 10 a month as long as she remained at the bouse of the petitioner's father. The petition ends thus: 'We beg to ask the Hon'ble Court to pass a decree according to the above-mentioned term for Rs. 10 a month for maintenance.' On this petition also the order of the Court was that it should be filed. Then, again, on the 7th January 1921, the lady made a further application to the Magistrate for payment of arrears of maintenance to the amount of Rs. 346 and on the 8th February 1921 an order under Section 438 of the Code was made for the levy of the sum. Thereupon the Sessions Judge of Burdwan was invited by the present petitioner to make a reference to this Court with the result that this Court remanded the case to the Sub-Deputy Magistrate with certain directions, namely, that proper enquiries should be made on the four points set out, and that the case should be disposed of on that footing. The four points were, first, whether by the return of the wife to the husband's house towards the close of the year 1918, the order of the 14th September 1915, became inoperative; secondly, whether by reason of the arrangement made in the beginning of the year 1919, the order of the 14th September 1915 was superseded; thirdly, whether if the order of the 4th September 1915 is still in force, it should now be cancelled under the provisions of Section 488, Sub-section (5); and, fourthly, what amount is due to the wife if the order of the 14th September 1915 is not imperative and has not been superseded or cancelled.
2. On receipt of these directions the Sub-Deputy Magistrate proceeded to take evidence and arrived at a finding, on the 17th August 1921, to the effect that a sum of Rs. 346-13 was due by the husband to the wife. Thereupon the present petitioner again moved the Sessions Judge of Burdwan to make a reference to this Court. The learned Sessions Judge, before otherwise dealing with the matter, remanded the case to the Sub-Deputy Magistrate in order that he might come to more explicit findings on the four points set out in the judgment of this Court. The Sub-Deputy Magistrate recorded such findings on the 20th December, but their effect was not to modify in any way the order which he had already made. Thereupon the Sessions Judge of Burdwan las referred the whole case to us with the recommendation that the order of the Sub-Deputy Magistrate should be set aside.
3. The matter for decision in this reference is, it appears to me, whether the decisions of the Magistrate on the four points are or are not correct. As regards the first point, namely, whether the order of the 14th September 1915, became inoperative by reason of the woman's having returned to live with her husband towards the end of the year 1918, it appears to me that the view taken by the Sub-Deputy Magistrate is correct. A mere temporary stay of this kind, though it may have suspended the operation of the order, had not the effect of cancelling it in the way in which it could be cancelled under Section 488(5) of the Code. Moreover, the Magistrate found that the petition to which I have referred and which was filed by the lady on the 24th January 1919, was obtained by fraud. It is obvious that such a petition could not have the effect of cancelling the order dated the 14th September 1918.
4. The second point is of greater importance, namely, whether by reason of agreement made in the beginning of the year 1919, the order of the 14th September 1915, was superseded. It appears to me that when the petition of compromise was filed in the Court of the Sub-Deputy Magistrate, the parties had the intention of ejecting a complete settlement of all questions outstanding between them; and it further seems to me that if there had been any inter ton of excluding the arrears of maintenance from the operation of the petition of compromise this would have been expressly mentioned therein. In my view, the decision of the learned Magistrate on the second point is correct and the intention of the parties, when they filed their petition, was, that the lady should abandon her claim to any arrears of maintenance which may have accrued due up to that date.
5. I think that the Sub-Deputy Magistrate has rightly decided the third point. It has been urged that the petitioner had not proper opportunity to place his case before the Court. But I am satisfied that he wilfully abstained from appearing when he had notice of the proceedings, and that this is not a just ground for disturbing the Magistrate's finding. It is certainly not proved that Parul Bala has been guilty of any irregular conduct and, having regard to the treatment she has had in the past, she has ample reason, as things at present are, for refusing to live in her husband's house. There is no ground, therefore, for cancellation under Section 488(5) of the order of the 14th September 1915.
6. In this view of the case, it becomes unnecessary for this Court, to consider the fourth point which was referred to the Magistrate.
7. In the result, the reference of the learned Sessions Judge should be accepted only so far as it relates to the arrears of maintenance anterior to the 12th April 1919; as regards the arrears of maintenance subsequent to that date, the order of the learned Sub-Deputy Magistrate should be affirmed. It will be necessary in this view to return the case to the Sub-Deputy Magistrate in order that he may calculate, on this footing, the amount of arrears of maintenance due by the petitioner to his wife.
8. The order of the Sub-Deputy Magistrate as regards costs, will stand. We make no further order as to costs.