BIMLA DEVI ALIAS PIARA DEVI Vs. PREM DASS

JUDGEMENT

(1.) BRIEFLY stated the material facts necessary for the disposal of this Criminal Revision are that the petitioners Shipmate Balm Devil and her son made an application under Section 125, Code of Criminal Procedure (hereinafter referred to as the Code) for maintenance against Prem Dass respondent on 26-3-1984. It appears that the proceedings dragged on and ultimately an application for interim maintenance was made by the applicants claiming that Rs. 500/- per month be fixed as interim maintenance for the wife Shrimati Bimla Devi and Rs. 300/- per month for the son, Ramesh Kumar. During the pendency of the aforesaid application, a compromise took place between the parties. The compromise is Annexure P/2 dated 12-10-1988. Broadly speaking the. compromise was that Ramesh Kumar will look after the business of the father under his supervision and guidance and the father was to provide maintenance to Ramesh Kumar as well as his wife Bimla Devi. It was specifically provided that from the date of the compromise respondent shall pay Rs. 200/- as monthly maintenance to Shrimati Bimla Devi. The parties made statement before the learned Judicial Magistrate 1st Class, Ludhiana and in terms of the statement and the compromise which was exhibited as Annexure C-1 and made a part of the order, the learned Judicial Magistrate dismissed the application as withdrawn. Shrimati Bimla Devi served a notice, Annexure P/3 dated 17-5-1989 on the respondent referring to the aforesaid compromise and asking him to pay. maintenance at the rate of Rs. 200/- per month with effect from 12-10-1988, the date of the compromise. The respondent having failed to pay the amount, Shrimati Bimla Devi took out execution under Section 125 (1) of the Code on 16-6-1989 claiming Rs. 1,600/- on account of arrears. The amount was paid by the respondent subject to objections which were filed in the Court. Broadly speaking the objection was that the-compromise was a package deal. The same could not be implemented for default on the part of Ramesh Kumar. The respondent was entitled to cancel the compromise and, therefore, in terms of the said compromise, be cancelled the same by serving a notice dated 30-6-1989. There was thus no question of any payment on account of maintenance. The alternative plea was that at no stage did the Court pass an order fixing or granting maintenance to Shrimati Bimla Devi. By the impugned order, Annexure P-4 dated 16-2-1990, the learned Magistrate upheld the contention of the respondent on both the counts and dismissed the execution application. It is against the above order that Shrimati Bimla Devi has filed this revision,

(2.) THE facts mentioned above are not in dispute. The fate of this revision turns on the construction to be placed on the compromise, Annexure P/2 and the order passed thereon by the" learned Judicial Magistrate. After hearing the learned counsel for both the parties and giving the matter my careful consideration, I am of the view that in the facts and circumstances of this case including the language used in the compromise and the order, it must be held that the term regarding payment of Rs. 200/- per month as maintenance to Shrimati Bimla Devi is severable from the remaining compromise that it was enforceable as order under Section 125 (3) of the Code. My reasons for reaching this conclusion are that there were admittedly two independent claimants in their own right namely, the wife and the son. The wife had claimed Rs. 500/- per month and the son had claimed Rs. 300/- as interim maintenance. The compromise was reached against the aforesaid claim which was pending in the Court. The compromise, Annexure P/2 further shows that separate provisions were made in regard to Ramesh Kumar and Shrimati Bimla Devi. In regard to Ramesh Kumar, there was a provision for his looking after the business of his father under his guidance and according to his directions. He was liable to render accounts to his father. In turn the father was to provide in addition to the aforesaid business maintenance to his son. The other part of the compromise was mentioned in paragraph 5 as under : "that Shri Prem Dass will henceforth pay Rs. 200/- as monthly maintenance to Shrimati Bimla Devi. " In so far as this part is concerned, there were no its and buts. In paragraph 3 while mentioning about the performance of Ramesh Kumar in looking after the business, it was stated that Shri Prem Dass was at liberty to cancel the compromise in which event he was not to be bound by the terms and conditions. In the context it necessarily meant that in so far as Ramesh Kumar was concerned, the father was entitled to cancel the compromise, if Ramesh Kumar was found wanting and committed negligence or default in rendering accounts to his father. In other words, the two parts of the compromise were severable. The amount fixed as maintenance in the compromise namely Rs. 200/- was much less than the sum claimed in the application for interim maintenance which was Rs. 500/- by Shrimati Bimla Devi and a total of Rs. 800/- for both the mother and the son. This is as it usually happens in a compromise; there is always a spirit of give and take and part of the claim is surrendered by the claimant. This brings me to a consideration of the order, Annexure P/1 passed by the learned Magistrate. The first thing to be noted is that the order was passed in view of the statements of the parties and the compromise, Exhibit C-1. The second thing to be noted is that it was expressly directed that the parties shall remain bound by the terms of the compromise, Exhibit C-1. Thirdly, it was expressly stated that the compromise, Exhibit C-1 shall form part of the order. As against the above three factors pointing in one direction, it was stated that the application is to be dismissed as withdrawn. This was a pointer in the reverse direction. The question is whether in substance the order can be interpreted to mean that it was simply an order dismissing the application as withdrawn or it was an order accepting the compromise and giving effect to the same. In view of the analysis of the order undertaken by me in the foregoing part of this order, there is no manner of doubt that in substance the order must be taken to be an order accepting the compromise and giving effect to it notwithstanding use of the words that the application was dismissed as withdrawn. It is well known that it is the substance on the matter and not the form which ultimately decides the issue. The learned Magistrate clearly fell in error because of the use of the unhappy expression that the application was dismissed as withdrawn. In fact, the irresistible conclusion in the context of the facts highlighted above was that the petition for maintenance had been disposed of in terms of the compromise between the parties.

(3.) THERE can be no dispute that application under Section 125 and for that matter an application for interim maintenance can be disposed of on the basis of compromise between the parties. In fact there can be nothing more satisfactory than an order based on compromise between the parties. Compromise presupposes free, consent of the parties to the compromise. If any authority is required, reference may be made to :-- (i) Hashim Hussain v. Rukaiya Bano, 1979 (2) Cri. L. J. 1143. (ii) Gangar Laxmanna v. Bhojawa, AIR 1952 Hyderabad 150. (iii) Ch. Dharam Singh v. Rano, 1970 PLR 368.