KAUR SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This revision petition is directed against toe order of the learned Munsif & Judicial Magistrate, Srikaranpur dated 21-7-1987, whereby, the learned Magistrate has held that the petitioner is duty bound to pay the arrears of maintenance to non-petitioners No. 2 and 3 from June 1986 to June 1987.

(2.) The facts of the case briefly stated are: that non-petitioner 2 Smt. Murti and non-petitioner No. 3 Mst. Mt Veerpal Kaur are the wife and daughter of petitioner Kaursingh. Non-petitioner No. 2 filed a petition for maintenance against petitioner under Section 125 of the Criminal Procedure Code on behalf of herself and her daughter. In that petition, a compromise petition was filed by the parties. In the compromise, it was agreed by petitioner Kaursingh that he will pay Rs. 400/- to Smt. Murti and Rs. 100/-to Mst. Veerpal Kaur per month as maintenance. It was averred in that compromise that if at any stage, Mst. Murti Starts living with petition or Kaursingh, she will not be entitled to any maintenance and she will only be entitled to maintenance in case she does not live with Kaursingh. On the basis of that compromise, a compromise decree was passed. After the compromise decree was passed, Mst. Murti did not go and live with her husband Kaursingh and, therefore, she has claimed the amount of maintenance on her behalf as also on behalf of her daughter from June 1986 to June 1987.

(3.) Mr. M.L. Garg, the learned Counsel appearing for the petitioner has submitted that this decree is not executable because it is conditional decree. In support of his submission, Mr. Garg has placed reliance on a decision of this court in Bhanwari Bai v. Bheroon La11, wherein it has been held that a conditional order could not be passed under Section 488 of the Criminal Procedure Code. A magistrate cannot pass an order not allowing maintenance for the present and directing that in the event of certain conditions coming into existence maintenance allowance shall be payable. Such a conditional order is incapable of execution. In Bhanwari Bats case (supra) the order of the City Magistrate granting maintenance to the wife Rs. 45/- per month was set aside and the husband was asked to maintain her according to his status and financial position and a security was taken from him in the sum of Rs. 2,000/- to the effect that he would not show any neglect in the discharge of his duties enjoined upon him. It was further ordered that in case he neglected to maintain his wife, the security shall be forfeited and the forfeited amount of security shall be paid to the wife and she will receive Rs. 45/- per month as maintenance allowance thereafter. That of course was a conditional order. In this case, straightway maintenance has been granted to the wife and the daughter of the petitioner but it has been observed that if at any time the wife starts to live with her husband, she will not be entitled to any maintenance. It is not a conditional order as has been passed in Bhanwari Bais case (supra), and therefore, this case has no application to the facts and circumstances of this case.