TETRI Vs. RAM NEWAJ

JUDGEMENT

(1.) The petitioner has obtained this Rule and it relates to certain proceedings under Section 488, Criminal P. C.

(2.) The material facts which need be stated briefly are as follows: The petitioner applied for an order of maintenance under Section 488, Criminal P. C. against her husband. The order granting maintenance was made on 23rd June 1947. There were certain proceedings thereafter which need not be considered. On 3rd November 1947, the husband made an application under Section 488, Sub-section (5), Criminal P. C., for cancellation of the order for maintenance on the ground that his wife was living in adultery. When that application came to be heard a compromise petition was put in on 2nd December 1948 which is in the following terms:

(3.) It is argued on behalf of the petitioner that the learned Magistrate had no jurisdiction to pass the order which he did upon the compromise petition. It is said that once an order for maintenance is made it can only be cancelled or reviewed upon the conditions mentioned in Sections 488 and 489, Criminal P. C. If the conditions specified in those sections were not present the Court had no jurisdiction to cancel the order for maintenance. It is argued that the order of 2nd December 1948 being without jurisdiction, the order for maintenance still subsists. Learned advocate on behalf of the husband frankly admits that there is no specific provision in the Code which empowers a Magistrate to cancel an order for maintenance upon a compromise petition filed by the parties after the order has been made; but he contends that in the circumstances which have occurred the basis of the order for maintenance no longer exists, and that as it is an order dependent on certain continuing circumstances it has become infructuous and that this Court should not interfere with the order of the learned Magistrate refusing to accede to the prayer made in the petition of the wife. I have been taken through both Sections 488 and 489, Criminal P. C; it is clear that there is no express provision in these sections which permits a Magistrate to cancel an order for maintenance which he has already made on the ground that the parties have made up their differences and wished to have the order cancelled. On the other hand, there is no prohibition in the Code against a Magistrate acting upon a petition of compromise in proceedings under Section 488, Criminal P. C. In my opinion, if both the parties approached the Magistrate after the Magistrate made an order of maintenance and said that they did not wish this order to continue there could be no obstacle in the way of the Magistrate passing an order in terms of the compromise. On behalf of the petitioner, I was referred to two decisions, namely, Parul Bala Debi v. Satis Chandra, 37 C. L. J. 180: (A. I. R. (10) 1923 Cal. 456: 24 Cr. L. J. 945) and Kanangammal v. Pandara Nadar, 50 Mad. 663: (A. I. R. (14) 1927 Mad. 376 : 28 Cr. L. J. 271). The facts in these cases are quite different. In those cases the wife after an order for maintenance had been made went to live with her husband for some time. Thereafter she left her husband and applied for recovery of maintenance in accordance with the order passed by the Magistrate. The Courts held that the mere fact that she had gone to stay with her husband did not have the effect of cancelling or nullifying the order for maintenance and that until such order of maintenance is cancelled or nullified the wife is entitled to claim maintenance in accordance with the terms of the order.