MT BHAGWATI DEVI Vs. GAJADHAR PRASAD

JUDGEMENT

(1.) THIS is a reference by the learned Sessions Judge of Aligarh asking this Court to set aside the order of a Magistrate who has refused to enforce an order for maintenance by taking proceedings under Section 488, Criminal P.C. The Magistrate refused on the ground that there had been a compromise between the parties and that he considered that a Criminal Court could not enforce a compromise and that only Civil Court could enforce it. The original order for maintenance was passed on 20 April 1930, and the order sets out that an application for maintenance was made on behalf of Mt. Bhagwati Devi and her son against Gajadhar Prasad, her husband, that Gajadhar Prasad had agreed to pay Rs. 50 maintenance for both, wife and child, per month and that the offer had been accepted. The Magistrate then passed an order for the sum of Rs. 25 to be paid monthly to Mt. Bhagwati Devi a.nd a sum of Rs. 25 to be paid to her minor son from 1 April 1930. The Magistrate who passed the order clearly considered that he was passing the order under Section 488, Criminal P.C. If Gajadhar Prasad had considered that he was making a compromise which can be enforcible by a Civil Court then he ought to have objected in revision or otherwise to the terms of the order of the Magistrate. Various rulings have been mentioned, but I understand that those rulings referred to cases where there is a compromise in writing between the parties which is of a nature that could be enforced in a Civil Court.

(2.) IN the present case there was no such compromise and no terms were imposed in the compromise. All that had been happened was that a compromise was arrived at as to the amount of maintenance. There is no ruling of this Court to the effect suggested by the Magistrate and the rulings which have been referred to of other High Courts do not appear to me to touch the present matter. For the applicant reference has been made to Pal Singh V/s. Mt. Nihal Kuar 1932 Lah. 349. IN this ruling it was held that a Magistrate can pass an absolute order under Section 488, Criminal P.C., based on a compromise between the parties referring only to the amount fixed as maintenance and nothing else. This case is similar to the present and shows that the former rulings of the Punjab High Court were considered to be different as those rulings have been considered in the judgment in question and the case has been distinguished from those former rulings. Accordingly I accept the reference of the learned Sessions Judge and I set aside the order of the Magistrate and direct that he should proceed to dispose of the application according to law.