PARAMU SIVARAJAN Vs. LAKHSMI MEENAKSHY

JUDGEMENT

(1.) This revision petition is against an order passed under S.489 Crl. Procedure Code enhancing the amount of maintenance awarded under S.488 of the Code.

(2.) The first counter petitioner is the wife and counter petitioners 2 to 5 are the children of the petitioner. They filed a petition under S.488 Criminal Procedure Code before the Sub Divisional Magistrate, Trivandrum claiming maintenance at the rate of Rs. 60/- per month. During the hearing the petitioner offered to pay maintenance at the rate of Rs. 30/- per month and the figure was accepted by the wife. Thereupon the learned Magistrate passed an order directing the payment of maintenance at the rate of Rs. 30/- per month. Some three and a half years later the present petition was filed by the wife and children praying for the enhancement of the amount. After considering all the relevant circumstances the learned Magistrate enhanced the rate to Rs. 50/- per month.

(3.) The only ground urged before me by the learned counsel for the revision petitioner is that the original order having been the result of a compromise the learned Magistrate has no jurisdiction to enhance the amount, the proper forum to grant the relief being the civil court. A number of decisions were cited in support of the position. There seems to be a difference of judicial opinion on this point. Some courts have taken the view that an order of maintenance passed on a compromise cannot be enforced by a criminal court. On the other hand certain other courts have preferred the view that where the compromise is with regard merely to the quantum of maintenance the criminal court can base an order on the compromise and enforce it. With respect, I must say that I am inclined to take the latter view. The reasoning behind the former view seems to be that once there is an offer to pay maintenance there is no longer any refusal to maintain without which the court gets no jurisdiction to pass an order under S.488 Criminal Procedure Code. This, I feel, is an overly technical view of the matter which can result in depriving the discarded wife and children of the benefit of the provisions of Chap.36 of the Criminal Procedure Code. For instance, after driving the wife and children to court by his refusal to maintain them an unscrupulous husband can, by merely offering to pay a certain sum per month effectively prevent them from having recourse to the remedy provided by S.488 Criminal Procedure Code and force them to go through the comparatively costlier and more difficult time consuming civil processes. Of course the position might be different if the compromise regarding the rate of maintenance is coupled with an agreement to live separately. In the present case however the offer to pay Rs. 30/- per month stands by itself. The husband merely stated that he is willing to pay Rs. 30/- per month and that he has no objection if such an order is passed and the wife stated in reply that she too has no objection in such an order being passed. The compromise here is merely an aid to the Magistrate in fixing the amount of maintenance and nothing more.