MEGHRAJ Vs. BACHIBAI

JUDGEMENT

(1.) This is a reference by the learned Additional Sessions Judge No. 2, Jodhpur recommending that the order of the Magistrate, First Class No. 1, Jodhpur dated 21st November, 1951 be set aside.

(2.) The facts giving rise to the order of the learned Magistrate are that on 24th April, 1956, Smt. Bachibai wife of Meghraj made an application under sec. 488 of the Code of Criminal Procedure for allowing maintenance to her and to Shakuntala a daughter by that marriage. The proceedings continued for a pretty long time in the court of the City Magistrate, Jodhpur and then before the Magistrate, First Class No. 1, Jodhpur. Eventually the parties came to a compromise on 11th October, 1958. On the basis of this compromise the learned Magistrate passed the following order on 15th October, 1958. That in terms of the compromise.

(3.) The learned Magistrate after making the above order stated in the last paragraph "in the result the non -petitioner would deposit Rs. 50/ - p. m. as maintenance in the court before 7th of every month." It appears that Meghraj continued to pay for sometime this monthly allowance to Smt. Bachibai. But thereafter he stopped paying it. On 7th October, 1960, Smt. Bachibai made an application before the Magistrate for the enforcement of the order saying that the amount of maintenance allowed by the court had not been paid to her for the last fourteen months. Notice of this application was given to Meghraj who by his reply dated 23rd March, 1961, raised several objections. The learned Magistrate without going into the objections dealt with the matter in a very cursory way and rejected the objections and ordered Meghraj to pay arrears of maintenance. Meghraj preferred a revision before the learned Additional Sessions Judge who came to the conclusion that the order of the learned Magistrate dated 15th October, 1958, was beyond the scope of sec. 488 of the Code and was thus unenforceable. He says that the as said order incorporates terms which the Magistrate acting under sec. 488 of the Code of Criminal Procedure could not give effect to, the whole order is bad and unenforceable. He has therefore, recommended that the order of the learned Magistrate be set aside. In support of his conclusion he has referred to Shankergar Trithvigar Vs. Bachibai Sambhugar(l) and Ram Saran Das Vs. Mst. Damodri(2).