MOHAMMAD PASNUR ALI Vs. RUFIA BEGUM

JUDGEMENT

(1.) Petitioner is the husband of the respondent. Respondent filed an application under Section 125 of the Code of Criminal Procedure before the Sub-divisional Judicial Magistrate, Rangia claiming maintenance. Parties filed a joint petition before the learned Magistrate indicating that they have decided to live as spouses. Petitioner undertook that he shall not torture or divorce the wife and further undertook that if he violates the condition he would pay Rs. 125.00 per month as maintenance allowance to her. The compromise was recorded by the learned Magistrate, who dropped the case. After the establishment of the Family Court the respondent filed an application before the court alleging that the husband has violated the terms of compromise and claiming arrears of maintenance at the agreed rate. The Family Court issued notice to the husband. The efforts of the Counsellor attached to the Court to bring about reconciliation failed. Admittedly the petitioner had contracted a second marriage after the earlier compromise. The Family Court passed an order directing husband to pay arrears of maintenance at the agreed rate till 15-5-1993 and directing issue of distress warrant. This order is now challenged.

(2.) Learned counsel for the petitioner urged three contentions before me, namely, (1) that the compromise order is incapable of being executed, (2) that the Family court has no jurisdiction to implement or execute an order passed by a Magistrate, and, (3) that the Family Court can execute only an order passed by it.

(3.) The facts recited above indicated that the wife had a genuine ground to move the Magistrate under Section 125 of the Code. This is reflected from the undertaking given by the husband in the compromise petition not to treat the wife with cruelty and in case he violates any condition, to pay maintenance at the rate of Rs. 125.00 per month to the wife. There is no dispute that subsequent to the compromise, petitioner took a second wife. The question of the first wife thereafter living with him could not reasonably arise. Under these circumstances, the Family Court apparently came to the conclusion that there was an effective order passed by the Magistrate under Section 125 of the Code. This is capable of being implemented. To take any other view would be to frustrate the very purpose of Section 125 of the Code and to compel the wife to move a fresh petition under Section 125 of the Code. I do not think such was the legislative intention. It is possible to take the view that the compromise order is in effect and substance an order directing the husband to pay maintenance to the wife at the rate of Rs. 125.00 per month in case he violates any of the conditions agreed to. The fact that he took a second wife during the subsistence of first marriage is itself an act of cruelty. I, therefore, find no legal inhibition against the implementation of the order.