SAILESH PADHAN Vs. HARABATI PADHAN

JUDGEMENT

(1.) The sole question urged in this revision is whether an order disposing of a petition filed under S.125, Cr. P.C. by the wife, in terms of compromise entered into between the parties to the effect that the husband, the wife and their sole offspring would remain together with the husband maintaining them and that if there is any infraction or negligence by the husband, or if he assaults the wife in the future, he would, by virtue of the terms of the compromise, pay maintenance of Rs. 100/- per month to the wife and Rs. 50/- per month to the child is executable by the Magistrate under S.125(3), Cr. P.C. Opposite party 1 and 2 had filed Criminal Misc. Case No. 28/82 before the S.D.J.M., Bargarh complaining of ill-treatment and refusal to maintain by the opposite party (petitioner herein) and claiming Rs. 150/- per month as maintenance in accordance with the terms of the compromise, but the petition was rejected as not maintainable holding that since the order passed on the compromise is executable, a second application on the same facts cannot be entertained After such order, the petitioner filed the Execution Case, out of which the order impugned arises, for realisation of Rs. 12,500/- towards maintenance due from 15-11-76 to 25-11-83. On the petition an order was passed by the court on 24-3-84 directing the judgement-debtor to pay a sum of Rs. 1000/- on 6-4-84 and the rest in two equal monthly instalments. Subsequently, a petition was filed by the petitioner seeking dismissal of the Execution Case as not maintainable. The plea of the petitioner was negatived by the learned S.D.J.M. relying upon 1967 Cri LJ 1246 (Punj) (Harbans Singh Khosla v. Mst Gurdev. Kaur) for which this revision has been filed.

(2.) Mr. J.P. Misra, the learned counsel for the petitioner, has placed reliance on AIR 1965 All 129, (Nathuram v. Smt. Ramsri) to contend that the execution case would not he maintainable. In the case, view adopted was that where a Magistrate passes an order on an application under S.488, Cr. P.C. (Old) in terms of the compromise under which the wife is to go back and live with the husband and if thereafter she is not treated properly, would get certain specified amount towards maintenance, the order in effect amounts to dismissal of the application under S.488 and hence the question of its execution does not arise if the wile is maltreated subsequently. With great respect to the learned Judge, I am not able to agree with the view propounded. When a compromise is effected between the parties in such a case, the terms being that the wife and the child would be entitled to maintenance at a particular rate but however their being paid such amount is kept suspended because the husband undertakes to maintain the wife and the child without any ill-treatment, it is not that an order has not been passed in terms of S.125(1), Cr. P.C. and that the application has been dismissed. If the compromise is entered into between the parties without being processed through the court and consequently the application before the court is dismissed, the compromise would not be enforceable through the court for which relief the parties may have cause of action before the civil court. But where the Compromise forms a part of the order, it must be taken to be a competent one under S.125(1) since the compromise is not in derrogation of the jurisdiction of the court to pass the order. In the present case, the substance of the compromise, in effect is to fix the rate of the maintenance and the order of the court accepting the compromise amounts to giving its seal to the rate of maintenance payable to the wife and the child When a case brought by the wife claiming maintenance is compromised by the husband agreeing to maintain her and the children with him with assurance of not assaulting her in future and binding himself to pay maintenance at a specified rate in the event of his failure to honour the commitment, it would ipso facto mean the onus cast upon the wife to establish facts as required of her to have been discharged by the admission of the husband of she being the wife and the children being his through her, his capacity to pay at the rate fixed and besides, depending on the words of compromise, the past ill-treatment might also be taken as admitted. Whatever thus stands proved would be to the advantage of the wife and she cannot be compelled again to prove such facts through a fresh petition. In AIR 1941 Cal 558 (Debjani Biswas v. Rasik Lal Biswas) where a petition under S.488, Cr. P.C. (Old) was disposed of in terms of compromise between the parties fixing the rate of maintenance receivable by the wife, it was held that the wife was entitled to have the maintenance allowance by execution in accordance with the provision of S.488(3) since an order made lawfully by the Magistrate under S.488 whether on compromise or otherwise must be deemed to be enforceable in the manner provided in Sub-Sec. (3) of the Section. The view finds full support from 1967 Cri LJ 1246 (Punj) (supra) which has itself followed AIR 1931 Mad 185 (1) (Mangayamma v. Appaluswami), AIR 1941 Cal 558 : ((1941-42 Cri LJ 894) (supra), AIR 1952 Hyd 150 (Gangar Laxmanna v. Bhojava) as also AIR 1958 Mys 190, Dr.Z.K.Thayumanuvar v. Assnambal Ammal.

(3.) While deciding a case under S.125(3), Cr. P.C. power is vested in the Magistrate to decide whether the non-compliance with the order passed under S.125(1) is for any sufficient cause and for such purpose he is entitled to take evidence. The second proviso to Sub-Sec. (3) also empowers the Magistrate to consider whether the offer, if any, of the husband to maintain the wife on condition of her living with him and her refusal to abide by the offer is just and proper. As such, when, a complaint is made of the husband having been guilty of non-compliance with the order in accordance with the compromise, it will be open to the Magistrate to decide whether such complaint is substantiated on facts and thereafter to give effect to the order fixing the maintenance as per the compromise petition by resort to the powers vested in him under Sub-Sec. (3). To hold otherwise would only be permitting a premium to be placed on the unscrupulousness of the husband who had lured the wile into a compromise on the promise of a reconciliation without probably ever having intended it.