GURDEEP SINGH Vs. GURMEL KAUR

JUDGEMENT

(1.) Gurmail Kaur - respondent filed an application under Section 488, Criminal Procedure Code, against Gurdeep Singh her husband, claiming maintenance on the allegations that he had turned her of his house after beating her and that ever since he had refused to keep her with him and maintain her. Gurdip Singh admitted his marriage but denied the other charge against him and averred that previously too there were similar proceedings between them and that in those proceedings a compromise was arrived at on the 15th June, 1959 under which they mutually agreed to live separately from each other. After recording the evidence led by the parties Shri Rajinder Lal Garg, Magistrate Ist Class, Nabha, found substance in the application and allowed maintenance at the rate of Rs. 40/- per mensem to Gurmail Kaur from the date of the petition and also ordered Gurdip Singh to pay Rs. 50/- to her as costs of the petition, vide his order dated the 22nd May, 1961. Gurdip Singh went up in revision against that order and the learned Additional Sessions Judge, Ambala, after discussing the entire evidence made the recommendation to this Court that the order of the trial Court granting maintenance to Gurmail Kaur may be set aside and her petition be dismissed, vide his order dated the 24th April, 1962.

(2.) The recommendation of the learned Additional Sessions Judge is based on the ground that during the previous proceedings under Section 488, Criminal Procedure Code, between the parties there was a compromise, the terms of which were embodied in Exhibit P-1 or D-1, according to which the parties were to be at liberty, and Gurmail Kaur would not be entitled to any maintenance and that she would withdraw her application under Section 488, Criminal Procedure Code. It was also agreed that Gurmail Kaur would not have any claim against her husband on account of clothes and ornaments. Relying on 49 Cr.L.J. 283 (Calcutta), the learned Judge held that the parties were living separately by mutual consent and, therefore the provisions of Section 488(4), Criminal Procedure Code, barred the wife being granted any maintenance. In the present case it is admitted that the compromise was entered into on the 15th June, 1959, and the present application was put in on the 3rd January, 1961. In between this period the parties were living separately.

(3.) The learned counsel for Gurmail Kaur maintained that the authority relied upon by the learned Additional Sessions Judge would not apply to the facts of the present case as Gurmail Kaur was forced to sign the compromise deed and that she was not a willing party to it. In support of his contention he cited Mukand Lal v. Jyoti Shamati, 1958 AIR(P&H) 390. In that case it was laid down that mutual consent would apply to separate living if such separate living was the result of a desire of both parties. This desire should be based on the volition of both the parties without any element of impelling or compelling circumstances. If a wife knows that the husband is determined to break up the marriage and to take another woman as his wife, and if she decides to live separately because of that reason, it cannot be said that the separate living is the result of any desire on her part to live away from her heart and home willingly and without the element of compulsion forcing the decision against her will". The facts of the present case are entirely different. In this case there is nothing on the record to show that Gurmail Kaur was forced by her husband to sign the compromise deed although it appears that she did so on the advice of her mother. The only thing alleged against Gurdip Singh is that during the time parties lived together they did not pull on well and that he threatened to commit suicide. It is alleged that he then left Gurmail Kaur with her parents. It cannot, therefore, be said that she was made to sign the compromise above mentioned against her will. The second case cited by him was Ram Chand v. Jiwan Bai, 1958 AIR(P&H) 431, but the facts of that case also do not apply to the present one. He also relied on Chambeli v. Gajraj Bahadur, 1954 AIR(All) 33 and 1942 PunLR 218. There is no quarrel with the principle involved in the authorities quoted above, but the facts of those cases do not apply to the present one. If Gurmail Kaur was not a willing party to sign the compromise, she could have resiled from it much earlier and not waited till the 3rd of January, that is for about a year and a half.