SAMIR RANJAN DAS Vs. BELA DAS

JUDGEMENT

(1.) - An application made by the present opposite party Smt. Bela Das, under section 125, Cr. P.C. was disposed of by a competent Judicial magistrate on the 8th November, 1982 whereby he directed her husband, the petitioner herein, to pay a sum of Rs. 450/- per month as maintenance allowance with effect from the 20th October, 1981. Against this order the petitioner made a revisional application to this court, being Criminal Revision No. 489 of 1983, which was disposed of on the 26th April, 1984 wherein the ending of the learned Magistrate that the petitioner was liable to pay maintenance to the opposite party was not disturbed but the amount of maintenance was cut down from Rs. 450/- per month as ordered by the learned Magistrate to Rs. 350/- per month. About 19 months thereafter on the 25th November, 1985 to be precise, the parties decided to live together and filed a joint petition before the learned Magistrate which provided that the present opposite party temporarily gave up her claim to maintenance but if at any time the petitioner misbehaved with her, she would be entitled to claim maintenance in terms of the order made on the 8th November, 1982. After staying together for sometime, according to the opposite party the petitioner began to ill treat her in different ways and ultimately on the 22nd May, 1987 she was compelled to come back to her father's place after lodging a diary in the local police station and put the order of maintenance into execution. The petitioner objected to the execution and denied the allegations of misbehavior and contended that the execution case was incompetent because of the compromise petition filed by the parties and any dispute relating thereto could be adjudicated only by a civil court. The learned Magistrate found that the opposite party tried. her best to live with the petitioner and that he was bound to pay the arrear maintenance to the opposite party. This order was passed by the learned Magistrate in Execution Case No. 13 of 1988, wherein the learned Magistrate found that the present petitioner was liable to pay a sum of Rs. 8,356/- on account of arrear maintenance for the period upto the month of April 1988 and directed him to pay the amount within a certain date fixed by the order. The present opposite party had filed another Execution Case being No. 16 of 198.9, wherein she has claimed maintenance for the period from May 1988 to April 1989. The present revisional applications seek to quash both the execution proceedings.

(2.) The learned Advocate for the petitioner has only contended that the execution cases cannot proceed unless the court below decided that the terms of the compromise were violated by the petitioner which alone would entitle the opposite party to enforce the order of maintenance. Stated otherwise, the contention raised on behalf of the petitioner is that unless the opposite party can establish that there was any misbehaviour on the part of the petitioner he was not liable to pay any amount in pursuance of the order made under section 125, Code of Criminal Procedure. This contention is liable to be rejected as it is a firmly settled position of law that a statutory order can ordinarily be demolished only in terms of the statute itself and it follows, therefore, that if an order for payment of maintenance is made under section 125, Code of Criminal Procedure, then it must remain operative and enforceable until it is modified or cancelled by a higher court or in accordance with the provisions of section 125(4) or 125(5) or 127 of the Code of Criminal Procedure. Since in the absence of such modification or cancellation, the order far payment of maintenance survives, no plea that there has been a compromise between the parties can be accepted as a valid defence to the enforcement of the order. A contrary view was no doubt taken in S. Natesa Pillai vs. Jayammal, AIR 1960 Mad 515 in which it was held by a learned Single Judge on the authority of some other decisions that when after an order for payment of maintenance was made, the parties resumed co-habitation it would have the effect of termination of the said order and in case the wife, was separated again from the husband, then she was to file another petition on a fresh cause of action and the learned magistrate could make an. appropriate order if he was satisfied that there was sufficient reason for the wife to leave her husband and that he neglected to maintain her. This, however, cannot any longer be regarded as good law on the point as the Supreme Court in Bhupinder Singh vs. Daljit Kaur AIR 1979 SC 442 has overruled that decision and Their Lordships laid down in no uncertain term that a compromise made between the parties subsequent to the order for payment of maintenance under section 125, Cr. P.C. is not a valid defence against enforcement of the order. In coming to this decision the Supreme Court has quoted with approval a very old decision of the Lahore High Court in Fuzal Din vs. Mt. Fatima, AIR. 1932 Lah. 115. In the case before the Lahore High Court, an order was made for payment of maintenance allowance which was neither rescinded nor modified but the husband relied upon the terms of a compromise said to have been made by the parties out of court. In such situation it was held that the husband might have recourse to such remedy in a civil court as might be open to him but the criminal court could not take any cognizance of the compromise. On refuse to enforce the order made by it. Therefore, in the case before us the compromise made between the parties after the order for payment of maintenance was made could not be looked into at all by the learned Magistrate who had therefore no option but to enforce the order, if so desired by the person in whose favour it was made. Since no notice can be taken of the compromise by the learned Magistrate, he cannot possibly call upon the present opposite party to establish that the petitioner has not complied with its terms. So there is no substance in the contention that unless the petitioner was shown to have misbehaved with the opposite party and thus violated the terms of the compromise, she could not claim any amount in execution of the order made in the favour under section 125, Cr. P.C.

(3.) On the above presses the revisional applications are rejected. Interim orders are vacated and the learned Magistrate is directed to dispose of the execution cases with utmost expedition. Application rejected.