PARASRAM Vs. BISAHIN

JUDGEMENT

(1.) THIS is a reference under section 488 Criminal Procedure Code, by the First Additional Sessions Judge, Raipur, recommending that the proceedings before the Magistrate First Class, Raipur, under section 488, Criminal Procedure Code, being Criminal case No. 61 of 1959 commenced on the application of non -applicant No.2 Mst. Bisahin for award of maintenance, be quashed as the petition itself was not maintainable.

(2.) THE non -applicant No. 1 had raised an objection to the maintainability of the petition on the Ground that since a similar petition had been filed, being Criminal Case No. 11 of 1936 and as in those proceedings a compromise between the parties had been arrived at whereby the husband had undertaken to maintain his wife in the manner amicably settled, the second petition for grant of maintenance was Dot maintainable. The Magistrate overruled the objection on the ground that as the previous petition was merely filed and no order was passed incorporating the compromise, the present petition was maintainable. He therefore, proceeded to enquire into the petition. The learned Additional Sessions Judge before whom the order of the Magistrate, deciding to proceed with the petition, was challenged came to the conclusion that the decision in the previous application under section 488, Criminal Procedure Code, resulting in the compromise between the parties was a bar to any subsequent application for the same purpose, the remedy of the wife being only to enforce that contract through a civil Court. He, therefore, held that the petition was not maintainable and recommended that it may, therefore, be dismissed by quashing the proceedings before the Magistrate First Class.

(3.) IN the instant case the petitioner -wife had filed before me certified copies of the order that was passed as also the compromise petition filed in Criminal Case No. 11 of 1936. (Since the certified copies were not now available over again I have retained true copies thereof on record and returned the certified copies to the counsel for the petitioner). The order passed by the Court was merely to file the petition which, in my opinion, meant its dismissal. That being the position, the only question which the Magistrate will now be called upon to determine is whether the husband subsequent to the settlement has or has not neglected or refused to maintain his wife so as to furnish a fresh cause of action for her to file the petition in question, the enquiry being kept confined to the conduct of the husband subsequent to the settlement only as the settlement evidently is age old. The petition could not be held to be barred by the settlement. A similar situation had arisen before this Court in the case of Netram Vs. Rajjubai and another [37 MPLC 367=ILR 1949 Nag. 435=AIR 1949 Nag.337] and it was held there that a compromise between the parties, meaning husband and wife, even though enforceable in a civil Court did not oust the jurisdiction of the criminal Court under section 488, Criminal Procedure Code, if the husband fails to act upto that agreement, It was further laid down that anything short of a decree entitling the wife to maintenance is not sufficient to oust such jurisdiction. I respectfully agree with this view as the same, in my opinion, is in full accord with that of mine. In view of that decision of this Court it is not necessary for me to consider the views of ether High Courts relied upon by the non -applicant No.1, husband.