MANGO Vs. MANGTU

JUDGEMENT

(1.) THIS is a reference presumably under Section 438 of the Code of Criminal Procedure from the order of the Additional Sessions Judge, Dharamsala. The facts giving rise to the reference are, that on 17-21970 an application for maintenance under Section 488 of the Code of Criminal Procedure was filed by Smt. Mango Devi against her husband Mangtu and the usual allegations were that he has neglected and refused to maintain her as well as their infant child and as such maintenance at the rate of Rs. 150/- per mensem for herself and Rs. 50/- per minor child were claimed It appears. on 10-2-1968 a similar application for maintenance was filed by Smt. Mango but the case was compromised at that stage The husband promised to take Smt. Mango to live with him and also to maintain her as well as her child. As the husband subsequently resiled and refused to maintain her and the child, the second application under Section 488 was instituted on 172-1970. The learned Magistrate dismissed the petition on the ground that previously the matter was compromised and no second application could be instituted. Rather Mango should file a civil suit setting the previous compromise incorporated in a Civil Court decree.

(2.) SMT. Mango came in revision before the learned Additional Sessions Judge and succeeded. The contention of Mangtu was set aside that the second application was net maintainable or that Smt. Mango should have gone to Civil Court to file a civil suit. The learned Sessions Judge has awarded Rs- 100/- per mensem as maintenance to Smt. Mango and her child. He has recommended the case to the High Court for accepting his recommendation to that effect.

(3.) THE learned Counsel for Mangtu opposed the reference made by the learned Sessions Judge- However, the reference was supported by the counsel on behalf of Smt. Mango. It is contended in the foremost that the Magistrate had no jurisdiction to entertain the second application for maintenance. To me it appears the objection is devoid of any merit. It is true the compromise was arrived at between the husband and the wife but if the husband subsequently resiled and neglected or refused to maintain the wife or their child, a fresh cause of action arose for an application for maintenance under Section 488- The previous compromise had really the effect of condonation on the Dart of the petitioner of the neglect or refusal and she should be deemed to have withdrawn her petition at that stage, When the husband subsequently ran counter to his poromise and deliberately resiled from the compromise, the neglect or refusal to maintain the wife and the child gave a fresh cause of action to them for instituting an application under Section 488. The finding of the Magistrate as well as of the learned Sessions Judge has been that Mangtu has neglected or refused to maintain Smt. Mango and their child. In the circumstances the Magistrate had the jurisdiction and his decision against that was decidedly incorrect