MUKHTIAR KAUR Vs. AJMER SINGH

JUDGEMENT

(1.) THIS is a reference made by the learned Sessions Judge, Ganganagar, in a proceeding under sec. 488 of the Code of Criminal Procedure holding that the order of the Sub-Divisional Magistrate dated 11th February, 1963 was executable and therefore recommended that the order passed by the said Magistrate on 29th June, 1964, by which he held it to be otherwise be set aside.

(2.) THE circumstances leading to the present reference briefly stated are these : On 22. 1. 1963 Smt. Mukhtiar Kaur wife of Ajmer Singh made an application u/sec. 488 of the Code of Criminal Procedure stating that she was married on 4. 3. 1948 according to law with Ajmersingh and because she did not bear any child for 3. 4 years after the marriage her husband started manifesting indifference in the beginning but eventually ill-treated her. On account of the intervention of common relations she somehow managed to live with him. About 9 months before the date of the application her husband and his parents forcibly turned her out of the house. Ajmersingh on 26. 5. 1962 married Smt. Balbir Kaur daughter of Kernail Singh and she has, therefore, instituted a criminal complaint on account of the said illegal marriage u/secs. 494 and 114 of the I. P. C. which is pending. She was unable to maintain herself whereas her husband had considerable properties which were yielding good income. She, therefore, prayed for a maintenance allowance in the sum of Rs. 250/-per month. On 11th February, 1963 the husband appeared in answer to the application aforesaid and submitted a deed of compromise whereby the husband undertook to pay Rs. 80/- per mensem by way of maintenance allowance to Smt. Mukhtiar Kaur the first instalment for three months being payable on the 15th May, 1963 and they prayed that the application under sec. 488 Cr. P. C. be disposed of in accordance with the terms of the compromise. This deed was read over to both the parties and they acknowledged it to be correct, and it was accordingly verified. THE learned Sub-Divisional Magistrate, Hanumangarh passed an order on the same date stating that as the parties had submitted a deed of compromise which after due verification had been placed on the record and in view of the compromise the proceedings were dropped. On 4th October, 1963, Smt. Mukhtiar Kaur moved an application for realisation of the sum of Rs. 480/- alleging that her husband Ajmer Singh has not paid the allowance of Rs. 80/- per mensem. A reply was filed by the husband in which he stated that he had entered the compromise to pay Rs. 80/- per mensem to Smt. Mukhtiar Kaur because there was a criminal complaint under secs. 494, 114 I. P. C. which was pending against him and his parents, and in order to escape the consequences of the criminal complaint he was coerced into reaching a compromise and therefore it was not capable of being legally executed. Along with the reply he filed a certified copy of the order of the Court of the Munsiff Magistrate, Ganganagar dated 5th March, 1963, whereby the complaint under sec. 494/114 was permitted to be compounded, On 29th June, 1964 an objection was taken before the learned Sub-Divisional Magistrate, Hanumangarh, that the application made by Shri Jwala Singh, the father of Smt. Mukhtiar Kaur, could not be entertained because no power of attorney was presented by Jwala Singh in his favour and further that the order passed by the Sub-Divisional Magis-trate on 11th February, 1963 was no order awarding maintenance allowance and the proceedings were dropped and the same could not be executed. Regarding the non-submission of the power of attorney the learned Magistrate observed that Jwala Singh could be permitted to do so even then but the main point which required consideration was whether the order of 11th February, 1963 was enforceable or not and he came to the conclusion that the order was unenforceable because the proceedings were dropped and no specific order was passed. A revision application was presented before the Sessions Judge, Ganganagar, against the order of the learned Magistrate dated 29th June, 1964. THE learned Sessions Judge observed that the intention of the parties and that of the learned Sub-Divisional Magistrate was clear that the parties were to act in accordance with the compromise mutually arrived at. THE Magistrate was not called upon to fix the maintenance amount himself because the parties had reached the compromise and having regard to the language employed in the order of the 11th February, 1963, the Sub-Divisional Magistrate was wrong in holding that the said order was not executable. He has accordingly recommended that the order of the Sub Divisional Magistrate of the 29th June, be set aside and he be directed to enforce the terms of the compromise entered into between the parties.