Bulakan Mahton v. Souama Devi — 1975 DIGILAW 212 (PAT)

JUDGMENT Uday Sinha, J. This application has been filed by the petitioner involving the inherent jurisdiction of this Court for quashing the order of the learned Magistrate dated 7.11.1974 directing issuance of distress warrant against the petitioner for realisation of Rs. 2,110/- as balance of the maintenance allowance payable to the opposite party. The petitioner had also moved the Sessions Judge Patna, against the aforesaid order without any success. The petitioner has therefore, moved this Court for quashing the order referred to above. 2. The petitioner is the husband of the opposite party. It appears that feeling between them became strained sometime prior to 1959 which led to filing of an application under section 488 of the Code of Criminal Procedure by the opposite party against the petitioner. In 1959, an order for maintenance of Rs. 10/- per month was directed to be paid by the petitioner. The Sum of Rs. 10/- to be paid monthly was subsequently enhanced to Rs. 15/- per month in 1967. On 9.10.1971, the quantum of maintenance was further enhanced to Rs. 25/- per month. On 9.2.1971, an application was filed by the opposite party before the learned Magistrate for enforcing the order for maintenance passed in her favour. On notice being issued, the petitioner showed cause objecting to the prayer of the opposite party for realisation of the maintenance as well as for increasing the amount of maintenance. On 2.11.1973, an application was filed by both the parties to the effect that they had settled the matter subject to certain conditions. The conditions mentioned in the application were that the petitioner would take the opposite party as his wife and keep her as such and that he would not illtreat her. The application was signed by the petitioner and bore the thumb-impression of the opposite party as well. Paragraph 8 contained the prayer that subject to the conditions mentioned in the application and that the application filed by the opposite party dated 9.2.1971 be dismissed without any further consideration. The record of the case shows that one Sri Ramjatan Bhagat was appearing for the opposite party till the so-called compromise petition was filed before the learned Magistrate. The compromise petition was, however, not signed by him but a fresh Vakalatnama was filed by one Sri Ramlakhan Tiwary. Thus, a fresh lawyer was engaged for the purpose of affirming the fact of cumpromise. The compromise petition was, however, not signed by him but a fresh Vakalatnama was filed by one Sri Ramlakhan Tiwary. Thus, a fresh lawyer was engaged for the purpose of affirming the fact of cumpromise. Another application was filed by Sri Ramjatan Bhagat, Advocate to the effect that the so-called compromise, was not a genuine one and that the opposite party had been duped into subscribing to the compromise petition. The learned Magistrate, therefore, personally enquired from the opposite party who was present in court and on her stating that she had joined the compromise, the petition of compromise filed on 2.11.1973 was allowed and the objection of the erstwhile counsel was rejected. It appears that for about a year the parties lived amicably but they could not pull on for long and on 27.3.1974 an application was tiled by the opposite party to the effect that the petitioner had violated the conditions mentioned in the compromise petition and she had been deserted after assault by the petitioner. The opposite party, therefore, prayed that the order of the Magistrate dated 3.11.1973 be recalled. This application was naturally opposed by the petitioner. The learned Magistrate recorded the evidence of the opposite party as well as one Ganauri Mahton in support of the application filed by the opposite party and after hearing the parties passed the impugned order which has given rise to the present application. 3. Learned counsel for the petitioner has assailed the order of the learned Magistrate on the ground that the order for maintenance having been cancelled by the learned Magistrate by order dated 3.11.1973 and the parties having compromised among themselves and lived amicably for a year the initial order for maintenance passed in 1959 stood cancelled and, therefore, the order for realisation of maintenance by the process of distress warrant was illegal and without jurisdiction. He has relied on the case of Tetri v. Ram Newaj1. I have given my anxious consideration to the submission of learned counsel for the petitioner and the authorities relied upon by him but I regret, I am unable to accept them for the reasons as I shall hereinafter state. The sheet anchor of learned counsel for the petitioner is the Calcutta case relied upon by him. That case, in my humble opinion, is on a different set of facts and is distinguishable. The sheet anchor of learned counsel for the petitioner is the Calcutta case relied upon by him. That case, in my humble opinion, is on a different set of facts and is distinguishable. It is true that there was a compromise between the parties after the passing of the order for maintenance in that case as well but the distinction between 1950 Calcutta 168 (Supra) case and the instant case lies in the fact that five months after the order for maintenance had been passed an application was filed by the husband under section 488 (5) of the Code of Criminal Procedure for cancellation of the order for maintenance on the ground that his wife was Jiving in adultery. The learned Judge quoted the prayer of the petitioner in that case which was in the following terms ; “In the circumstances your petitioners pray that your honour would be pleased to treat the case as compromised and the order of maintenance may be treated as ineffective.” The application for cancellation of the maintenance was disposed of on compromise and an order was passed in terms of the prayer of the petitioner quoted above. Thus the order for maintenance stood cancelled. Only two days after the order of compromise had been recorded and the proceeding dropped, the wife again filed another application with the allegation that her husband had assaulted her and had kept her under lock and key and threatened to cut off her hands and legs and, therefore, she prayed that the order recording the compromise be set aside. The wife did not succeed before the learned Magistrate in having the order of compromise set aside and a similar fate met before the Additional Sessions Judge. She, therefore, moved the Calcutta High Court against t he Order of the learned Magistrate refusing to recall the order of compromise. In those circumstances, his Lordship laid down as follows ;- “In my opinion an order passed under S. 488, Criminal P.C., is a continuing order and it is based upon the fact that the husband and wife are at variance and that the husband has refused to maintain his wife. In these circumstances the husband is compelled to maintain his wife by an order passed under S. 488, Criminal P.C. It is clear from the provisions of the various sub-sections to Ss. In these circumstances the husband is compelled to maintain his wife by an order passed under S. 488, Criminal P.C. It is clear from the provisions of the various sub-sections to Ss. 488 and 489, Criminal P.C. that this order of maintenance is dependent upon certain circumstances continuing to exist. In altered circumstances the order may be set aside or varied. The two sections lay down certain conditions under which an order for maintenance may be set aside. It is true that the sections have not mentioned the particular circumstances of this case. I think it would be reasonable to hold that where parties have come together and have asked the Court to cancel an order for maintenance the Court has jurisdiction to cancel such order." The lines quoted above will show that his Lordship was considering whether a Magistrate has jurisdiction to cancel a compromise recorded earlier and Sen, J. in exercise of his inherent power cancelled the order for maintenance passed by the learned Magistrate. 4. The distinguishing feature between the Calcutta case and instant case lies in the fact that in the present case no application for cancellation of the order for maintenance had been filed although learned counsel for the petitioner contended that the order of the learned Magistrate accepting the compromise must be read as cancelling the order of maintenance. I regret, I am unable to read the order as such. The order of the magistrate dated 3.11.1973 has to be read in the light of the application filed by the parties. The court was called upon to adjudicate an application filed by the opposite party for realisation of arrears of maintenance and for enhancement thereof. This application was being opposed by the petitioner and the compromise thereafter stated that the matter may be dismissed without any further consideration. Therefore, when the learned Magistrate accepted that petition, it only amounted to dropping the consideration which he was called upon to decide in regard to the prayer of the opposite party. There was no prayer either in the cause shown by the petitioner or in the joint compromise petition, that the order for maintenance passed in 1959 be cancelled or be treated as ineffective. In that view of the matter, the Calcutta decision has no bearing upon the instant case. There was no prayer either in the cause shown by the petitioner or in the joint compromise petition, that the order for maintenance passed in 1959 be cancelled or be treated as ineffective. In that view of the matter, the Calcutta decision has no bearing upon the instant case. I am unable to read the prayer in the compromise petition and the order passed by the learned Magistrate as cancelling the order for maintenance. The order for maintenance had not been cancelled although a compromise had been arrived at between the parties. It only has the effect of suspending the order for maintenance and cannot be deemed to be an order cancelling the same ipso facto by the mere fact of compromise. 5. I am fortified in the view that I have taken• on the case of Parul Bala Debi V Satish Chandra Bhattacharjee2 AIR 1923 Cal 456 which is a Division Bench decision. In similar circumstances, it was held that the initial order for maintenance did not amount to cancellation thereof. In that case also there was a compromise between the parties and had been recorded by the court. To a similar effect is the decision in the case of Kianagammal V Pandara Nadar3 AIR 1927 Mad 376 where it was observed that an order whose term is not fixed and whose currency is not• made expressly dependent upon the continued existence of some circumstance or set of circumstances, remains in force until, it is cancelled and that this rule applies to maintenance orders passed under section 488 of the Code of Criminal Procedure. It was also observed in that case that where there has been a change in the wife's circumstance, may be by compromise, it would be for the husband to, obtain either the cancellation or the modification of the original order and until he does that the original order must be deemed to be in force. Curgenven, J, went to the length of saying that the mere fact that the case fell within the circumstance mentioned in section 488 (5) of the Code of Criminal Procedure for cancellation of the initial order would not by itself amount to cancellation of the order for maintenance but that an application followed by an order cancelling the order for maintenance was essential otherwise the initial order for maintenance would remain in suspense. The Calcutta decision referred to above was followed by Curgenven, J. To a similar effect is the case of Laxman Gajju V. Sitabai Laxman4 AIR 1958 Bom 14 where Bavdekar, J. held that cohabitation does not put an end to the order under section 488. This case is exactly like the present case where there was a compromise between the parties because they had agreed to resume co-habitation and the application for arrears was disposed of in terms of the compromise. In those circumstances, Bavdeker, J held on a subsequent application for arrears of maintenance having been filed by the wife that the initial order for maintenance was still in force. In that view of the matter upon a review of the authorities on the point, I am of the view that the order of the learned Magistrate dated 3.11.1973 did not have the effect of cancelling the order for maintenance passed in 1959 and there is no substance in the contention of learned counsel for the petitioner on that score. 6. The next submission of learned counsel for the petitioner was that even if the order for maintenance would be deemed to be subsisting, the learned Magistrate could not issue distress warrant for the entire period but could take steps for realisation only of arrears subsequent to 3.11.1973. In my view, this submission is well founded and must succeed. The facts, to repeat, are that an application had been filed by the opposite party in which, besides other matters, it was prayed that arrears of maintenance allowed to her may be paid to her. The compromise and the order of the learned Magistrate must have the effect of expressly giving up the prayer for arrears of maintenance. A similar prayer was made in the Calcutta case, A.I.R. 1923 Calcutta 456 (Supra) where the prayer was rejected on the ground that there was no expression of any intention of excluding the arrears of maintenance from the operation of the petition of compromise. In the instant case, the opposite party must be held to have given up her claim for arrears of maintenance. In that view of the matter and on the facts and in the circumstances of the case, the petitioner will be liable to pay maintenance only for the period subsequent to 3.11.1973 as submitted by learned counsel for the petitioner. 7. In that view of the matter and on the facts and in the circumstances of the case, the petitioner will be liable to pay maintenance only for the period subsequent to 3.11.1973 as submitted by learned counsel for the petitioner. 7. For the reasons stated above, the application is allowed in part. Application allowed in part.