(1) This is an application in revision by one Balak Ram against the order of the first class Magistrate of Theog dated 13-7-1951 under Section 488, Criminal P. C., granting Rs. 40/- p. m. as maintenance to the petitioner's wife Mt. Padi, the respondent.
(2) Mt. Padi applied for maintenance against the petitioner at Rs. 100/- p. m. on 12-4-1951 on the ground of neglect and refusal on his part to maintain her. It was alleged by her that the petitioner had turned her out of house arid home and thereafter contracted marriage with another wife. The petitioner appeared before the Magistrate on 3-7-1951 when both the parties prayed for time to come to a compromise and the case was adjourned to 11-7-1951. The same day, i. e. on 3-7-1951, the parties came to a written compromise outside Court. It was agreed under this compromise that Mt. Padi would reside with Balak Ram and had no objection to the latter having contracted a second marriage, that Balak Ram agreed to her living with him and would bear all her necessary expenses and satisfy her desires, that he would be absolved from the liability to maintain her if she refused to live with him without sufficient cause, and that the compromise deed would be produced before the Court on 11-7-1951 and Mt. Padi would have no further right to prosecute her case. The compromise deed was prepared in duplicate, one copy having been given to each party.
(3) On the date to which the case had been adjourned, i. e. on 11-7-1951, Balak Ram produced his copy of the deed before the Magistrate and made a statement that the parties had come to a compromise. Mt. Padi however repudiated the compromise and stated that she had been forced by her brother to affix her thumb-mark to it. Besides examining the parties the Magistrate also recorded the statement of the scribe of the deed of compromise, who was produced as a witness by Balak Ram, and the statement of Mt. Padi's brother, who appears to have been examined by the Court suo motu. The Magistrate, however, recorded no finding but simply adjourned the case to 12-7-1951. There is nothing to show what, if anything, happened on 12-7-1951. On 13-7-1951 the Magistrate recorded the statement of Balak Ram and delivered his judgment granting maintenance to Mt. Padi as aforesaid. While examining Balak Ram the Magistrate asked him to show cause why separate maintenance be not awarded to Mt. Padi because he had turned her out, contracted a second marriage and neglected to maintain her. To that Balak Ram replied that he had not turned her out but she had gone away of her own accord, that he had contracted a second marriage for domestic reasons, that he was willing tc keep Mt. Padi with him but not to give her separate maintenance and that if she so wished he was ready to give her separate accommodation in his house. The Magistrate recorded findings in his judgment on only two points, namely, that the compromise was no bar to his granting maintenance, and that as Balak Ram had contracted a second marriage Mt. Padi was entitled to separate maintenance. As regards the rate of maintenance, he fixed it at Rs. 40/- p.m. 'according to the prevalent conditions.'
(4) The first ground urged by the learned counsel for the petitioner was that Mt. Padi's application for maintenance should have been dismissed in view of the compromise. In support of this contention he cited three rulings: 'MANGAYAMMA v. APPALASWAMI,' AIR 1931 Mad 185(1), 'PAL SINGH v. MT. NIHAL KAUR', AIR 1932 Lah 349 (2) and 'MT. ROSHAN BANO v. AZIM,' AIR 1943 Lah 59. Now, the basis for proceedings under Section 488, Criminal P. C., at the instance of the wife is that the husband though having sufficient means neglects or refuses to maintain her. The wife would not be entitled to institute the proceedings if that basis did not exist at the time of her filing her application. Nor would the Magistrate be justified in awarding maintenance without the said basis being still there when he passes, the order. It may be that although the wife had the right in a particular case to file an application under the said provision, the liability of the husband to pay her maintenance and the jurisdiction of the Magistrate to award the maintenance might cease because the aforesaid basis of neglect or refusal on the part of the husband to maintain the wife no longer existed. Such a contingency might arise due to a compromise between the parties since the institution of the proceedings. Whether the compromise has any such effect will depend upon the terms of the compromise. In other words, if in view of the terms of the compromise the charge of neglect or refusal to maintain the wife is negatived, the Magistrate must dismiss the application under Section 488. If, on the contrary, that charge still subsists despite the compromise, e.g., where only the rate of maintenance is settled by the compromise, the Magistrate would be justified in ordering the husband to make a monthly allowance for the maintenance of the wife, though it would have to be at the agreed rate.
(5) In the present case, it cannot be said that a compromise had in fact been arrived at between the parties, for the Magistrate recorded no finding with regard to the plea of Mt. Padi that she had been forced by her brother to affix her thumbmark to the deed of compromise. In point of fact, it was really not necessary for the Magistrate to arrive at any such conclusion, for even if a valid compromise had in fact been arrived at it was repudiated by one of the parties to it when presented before the Court. In a civil suit it is of course necessary for a Court to be satisfied whether the suit had been adjusted by a compromise, because it has in that case to pass a decree in accordance therewith. So far however as proceedings under Section 488 are concerned, the only relevancy of a compromise, except if it be a compromise in respect of the rate of allowance only, is for the purpose of finding out, as adverted to above, whether the charge of neglect or refusal to maintain was, or was not, negatived by it. That being so, as soon as the alleged compromise is repudiated by a party it has no further use for disposal of proceedings under Section 488 and the Magistrate must dispose of the application for maintenance on merits. The contention of the learned counsel for the petitioner that Mt. Padi's application for maintenance should have been dismissed in view of the compromise has therefore no force.
(6) The rulings cited by the learned counsel for the petitioner have no application to the facts of this case for they all have reference to dismissal of an application under Section 488 where the parties come to an amicable settlement by a compromise. In that case the charge of neglect or refusal to maintain would not subsist and the Magistrate should therefore dismiss the application for maintenance. But in the present case the compromise was repudiated and therefore the charge still remained and required being disposed of on merits.
(7) The next ground urged by the learned counsel for the petitioner must however prevail. It was contended by him that the Magistrate failed to follow the correct procedure on 13-7-1951, and that the petitioner had thereby been prejudiced. Under Sub-section (6) of Section 488 the procedure to be followed in recording the evidence is that prescribed in the trial of summons cases. It was therefore incumbent upon the Magistrate to put all the necessary questions to the petitioner under Section 242, Criminal P. C. One such question was: as regards the rate of maintenance allowance to be allowed against him, No question on this point was however put to the petitioner, and there is nothing in the statement of the petitioner justifying the inference that he agreed to the passing of an order at Rs. 40/- p. m. In fact, he totally denied the grounds on which maintenance was claimed. That being so, the Magistrate should not have fixed the rate of allowance without the parties having produced any evidence on that point. There is no doubt that Section 244, Criminal P. C., imposes the obligation of producing evidence on the parties themselves, but it is proper for a Court before convicting an accused (which, in proceedings under Section 488, means passing an order of maintenance against the husband) to ascertain from him whether he wanted to produce any evidence. Such a course was all the more necessary in the present case because, as already seen, the Magistrate proceeded at once to decide Mt. Padi's application on merits on 13-7-1951 although from the procedure he adopted on 11-7-1951 the petitioner might naturally have concluded that what the Magistrate would first decide was whether the parties had come to an amicable settlement of their dispute and so dismiss Mt. Padi's application. The petitioner was therefore not expected to be ready on 13-7-1951 with his evidence with regard to the rate of maintenance, and the Magistrate acted arbitrarily and to the prejudice of the petitioner by fixing the rate of maintenance without there being an iota of evidence on the record.
(8) This point was taken up before the learned Sessions Judge also but he brushed it aside by holding, on the authority of 'MT. GANGA DEVI v. RAM SARUP,' AIR 1939 Lah 24, that the word 'means' in Section 488 included capacity to earn money. This ruling was again cited before me by the learned counsel for the respondent. The ruling does not however lay down that the question of the means of the husband can be decided merely on his capacity to earn money. It only lays down that the capacity to earn money may be taken into consideration in coming to a conclusion with regard to the means of the husband. The capacity of each person to earn money must necessarily vary with his vocation in life. That being so, evidence should be forthcoming on the basic point of the husband's vocation in life, and in considering that evidence his capacity to earn money may also be taken into account. The contention of the learned counsel for the respondent that the rate of allowance could be fixed on the hypothetical and abstract thing known as the capacity to earn money is therefore wholly untenable.
(9) One other ground for setting aside the order passed by the learned Magistrate is that he has recorded no finding whatsoever on the important question of whether the petitioner had neglected or refused to maintain his wife inspite of the fact that the petitioner had categorically denied the allegation in his statement.
(10) The petition is accordingly allowed, the Judgment and order of the learned Magistrate are set aside and Mt. Padi's application is remanded to the Magistrate first class Theog for disposal according to law.