GANGAR LAXMANNA Vs. BHOJAWA

JUDGEMENT

(1.) A Single Bench of this Court has referred this case to the Division Bench having regard to the importance or the question of law involved. The question of law is: Whether a compromise entered into between the parties in the proceedings under Section 488 of the Indian Criminal Procedure Code is enforceable by a criminal Court or whether the aggrieved party has to seek redress in a Civil Court. The trial Court has held that the compromise is enforceable and the aggrieved party need not be directed to take proceedings in the Civil Court. Against that decision is this petition in revision. The learned Advocate on behalf of the petitioner relying on Gangasingh v. Mathura Bai 37 Deecan LR 121; Pal Singh v. Nihal Kaur AIR 1932 Lah 349 (2) and Ram Saran Das v. Mt. Damodri AIR 1934 Lah 864, argues that once the 'sulanama' is accepted by the Criminal Court the proceedings under Section 488, Indian Criminal Pro, Code come to an end, and if there is any breach of the conditions of the compromise the proper remedy of the aggrieved party is to take proceedings in the Civil Court. Shri Appa Rao, Advocate on behalf of the petitioner-respondent, contends that in proceedings under Section 488 where a compromise is filed fixing the maintenance allowance and the Court passes an order in terms of the said compromise such an order is enforceable and there is no difference whether the amount of the maintenance has been fixed after taking the evidence of the parties or on an agreement of the parties. Reliance is placed on the following cases: Mangayamma v. Appalaswamy AIR 1931 Mad 185; Debjani Biswas v. Rasik Lal Biswas AIR 1941 Cal 558; John P. E. Coelho v. Mrs. Blanche Coeliio AIR 1936 Nag 228. In Gangasingh v. Mathura Bai 37 Deccan LR 121, it has been held by Abdul Hameed Khan J. , that:

(2.) I have had the advantage of perusing the judgment of my learned brother and I agree with him. The question for decision is how far a criminal Court can enforce a compromise entered into in the proceedings under Section 488 of the Indian Criminal Procedure Code. It has been held in some cases that when a compromise is entered into in such proceedings, the husband cannot be said to be negligent and, therefore, the Criminal Court loses its jurisdiction and ought immediately to stop its proceedings. This was the ground taken by Mr. Justice Dalip Singh in a Single Bench case but, later on he gave it up and accepted the reasoning, Palsingh v Mt. Nihal Kaur AIR 1932 Lah 349 (2), that the husband entering into the compromise in a Court of law, is based on the supposition that the Court will also direct him to pay maintenance. Another ground is also stated for the proposition under consideration, namely, that ad a compromise usually contains many terms along with the terms that a fixed maintenance allowance will be paid, and all these terms do not come within the purview of the Criminal Court, it is advisable that the Civil Court alone should adjudicate on the compromise, for, otherwise, there is a risk that conflicting orders will be passed by the civil and the Criminal Courts, for instance, having regard to the other terms of the compromise, the Civil Court may come to the conclusion that the husband is under no obligation to pay any maintenance to the wife and on the other hand, the Criminal Court may direct the husband to pay the amount of maintenance he has agreed to pay under the compromise irrespective of the other conditions over which it has no jurisdiction. This being the problem, the majority of decisions in the Indian High Courts has tried to tackle it in this way. They have held that if the compromise contains a clear term as to maintenance, and that term is independent of other terms of the compromise, then a Criminal Court can very well direct the payment of the maintenance, as there is no difference whether the amount of the maintenance has been fixed after taking evidence of the parties or on an agreement of the parties. In my opinion, the logical course is to refer the parties to the Civil Courts. But in that case logical considerations will override the fundamental principle of Section 488, I. Cr. P. C. , which is that no person should be left without a means of livelihood. Hence the only possible course is to follow the opinion held in the majority of Indian Cases namely that if the term as to maintenance is independent of other terms of the compromise, then the Criminal Court can base its order as to maintenance on a compromise and enforce it. In the case under consideration, I agree with my learned brother, that the term as to payment of the fixed maintenance allowance is independent of other terms: that no doubt it is subject to variation in a specified future circumstance, namely, if the petitioner will not help her husband and his junior wife in agricultural work, the amount of maintenance will be reducible from Rs. 500/- to Rs. 300/ -. Variation in the amount of maintenance is allowed under Section 489, I. Cr. P. C. , and for that the parties have to go to the Court hence this condition does not go to the root of the compromise between the parties. I, therefore, agree with my learned brother in dismissing this revision petition and will also make no order as to costs having regard to the circumstances of the case.