Ambalal @ Ajaykumar Dwarkadas Amin vs Khembai and Another

N.G. Shelat, J.—The facts giving rise to this application, broadly stated, are that the opponent No. 1 Bai Khembai had filed an application

for claiming maintenance allowance against her husband the applicant, u/s 488 of the Criminal Procedure Code, in the Court of the Chief City

Magistrate, Ahmedabad inter alia alleging that her husband has contracted remarriage with one Bai Gita and has consequently deserted her. He has

not been maintaining her and that therefore, she be awarded Rs. 500/- per month by way of maintenance allowance from her husband.

Her husband, the applicant before this Court, resisted the same inter alia contending that he has neither deserted nor driven out from his house

as alleged. She had gone away of her own accord to her parents'' place and that, therefore, a divorce deed dated 31-7-65 was executed between

them. She was therefore, no longer his wife and thus was not entitled to claim any maintenance allowance from him.

When the matter came up for bearing before the learned Magistrate on 15-10-67 the parties presented a joint statement Exh. 3 in the case. As

stated therein, through the intervention of some good persons the matter was settled, and that it was agreed that ""the husband opponent should pay

Rs. 125/- per month by way of her maintenance allowance with effect from 1-7-1967 and that an order on that basis may be passed against him

u/s 488 of the Criminal Procedure Code, ""That statement was signed both by the parties, as also by their advocates appearing in the matter. The

learned Magistrate recorded the same, and directed opponent-husband Ambalal to pay Rs. 125/- per month as maintenance to the applicant-wife

Bai Khembai from 1-7-67 on or before 10th of every month. He further directed that the arrears of maintenance from 1-7-67 till 30-9-1967 and

the maintenance for the current month of October 1967 shall be paid on or before 10-11-1967. Feeling dissatisfied with that order passed on 18-

10-1967 by Mr. D.C. Mehta, Chief City Magistrate, Ahmedabad, the opponent-husband has come in revision before this Court.

In the application, he alleged that as a result of heavy pressure brought about by his own lawyer as also by the learned Chief City Magistrate,

and without being made aware of the legal implications of his signing any such compromise, he was made to sign the same against his will and that

therefore, it was liable to be rejected, and any order passed on such a compromise u/s 488 of the Criminal Procedure Code was bad in law. He

has then stated that she had given divorce to him and there fore, she was no longer his wife so as to enable her to claim any maintenance allowance

u/s 488 of the Criminal Procedure Code. Besides, on the basic of any such agreement entered into between the parties, no order can be passed by

the Court u/s 488(1) of the Criminal Procedure Code and that her remedy for enforcement thereof can be in a Civil Court. The other side has also

filed an affidavit challenging various statements made by her husband, and, according to her the consent terms were arrived at between the parties

voluantarily and he cannot now recile therefrom. The order passed on that basis, by the Court was quite valid and enforceable in law.

Mr. Sheth, the learned Advocate for the applicant husband did not press the first point regarding any pressure or duress exercised on the

applicant, obviously realising that it cannot be a question to be gone info by this Court, and the remedy if available, being open to him for having the

same set aside in accordance with law. He, however, urged that the learned Magistrate has the power and authority to pass any such order

provided he came to the conclusion that the relationship of the parties as husband and wife subsisted on that day and that there was neglect on his

part to maintain her as required u/s 488(1) of the Criminal Procedure Code. According to him she had given divorce to him and in that regard a

document dated 31-7-65 has been executed and in persuance thereof she has been paid Rs. 12,000/- in lump sum. The Court should have

therefore decided the same, before passing any order as he did on 18-10-67. It is indeed true that in his statement filed in the matter, he has so

alleged, stating further that she was no longer his wife from that day so as to entitle her to claim any maintenance allowance u/s 488 of the Criminal

Procedure Code If the matter were proceeded further, without any such consent terms arrived at between the parties, the Court would have no

doubt to go into that question and decide the same before he can be directed to pay any maintenance allowance to his wife. Not only that, but it

would have been further necessary to find that the husband has been neglecting or refusing to maintain his wife as required in Section 488(1) of the

Code. Now, it appears abundently clear that the parties were settling their disputes in respect of a complaint filed in that Court by Bai Khembai

against her husband u/s 488 of the Criminal Procedure Code. The settlement that was arrived at by them, therefore, was in relation to that

complaint. It was thus in respect of the disputes that existed between them which would otherwise have to be decided before any order u/s 488(1)

of the Criminal Procedure Code can be passed by the Court. If therefore, when they settled their disputes by agreeing to the fact that the husband

has to pay maintenance allowance at the rate of Rs. 125/- per month with effect from a certain date u/s 488(1) of the Criminal Procedure Code, it

can be taken that she was held entitled to claim that maintenance allowance. In other words, the disputes can be taken to have been resolved

between them, and that there existed subsisting relations between the parties as husband and wife, as also about her being deserted by him, and it

was that way, that he agreed to give maintenance at the rate of Rs. 125/- per month u/s 488 of the Criminal Procedure Code. Once the husband

agrees to submit to an order passed u/s 488 of the Code, all points raised in his statement can be deemed to have been given up, and further be

agreed to the final order for maintenance being passed against him, unless any point of dispute was kept open by them. It would be just an order

passed by the Court on admission or the like. Once, therefore, an order was passed by the Court u/s 488 of the Criminal Procedure Code,

whether it was on the basis of parties agreeing to the terms, or on hearing the case on merits, it becomes binding on the parties and no party can

take exception in that respect, unless it was set aside as being illegal or unenforceable in law. The contention that a matter u/s 488 of the Criminal

Procedure Code must be decided by hearing the parties on merits, has therefore no sub-Stance. There is no provision of law which bars any such

Court from passing orders on consent terms presented by the parties. It is neither illegal nor against public policy to so record it. It may be stated

that this was a quasi criminal proceeding and it was not in the nature of a complaint in respect of any offence which if declared by the provisions of

the Code as not compoundable, that there can arise any such bar or difficulty in recording the terms of compromise-provided they fall u/s 488(1)

of the Criminal Procedure Code.

It was however, urged by Mr. Sheth that such an agreement put in by the parties in any such proceeding can only be filed in a Civil Court and

not before a Criminal Court such as the one exercising the powers u/s 488 of the Criminal Procedure Code. In support thereof, he referred to

some decisions. The first decision that he referred to was In re Mohamed Rahimullah and Anr. A.I.R.1947 Mad 461 where it has been laid down

that the foundation upon which Section 488 and Section 489 rest, so far as granting of maintenance by the husband to the wife is concerned, is that

the relationship of husband and wife subsists between them. When that relationship is lawfully dissolved and there is no marital tie, either in reason

or upon any canon of justice or even upon the language of Sections 488 and 489 the husband cannot be directed to continue to maintain his

divorced wife. There can be no dispute that the relation ship of husband and wife must subsist at the date when the orders are being passed by the

learned Magistrate u/s 488 of the Criminal Procedure Code. If the relationship is lawfully dissolved and there has been no marital tie, no Court

would pass any such order In that respect. But there is no question of any lawful dissolution of marriage in the present case. After all that was a

contention raised by the opponent husband and that has to be taken as not persued, and was given a go-by no sooner the parties arrived at a

settlement whereby the husband himself undertook to pay the maintenance allowance as contemplated u/s 488 of the Criminal Procedure Code.

For the purpose of that pro-ceding in any event no such contention survived once he agreed to pay maintenance to his wife u/s 488 of the Criminal

Procedure Code. This decision nowhere says that such an agreement cannot be recorded by the Court of a Magistrate u/s 488 of the Code.

Then he invited a reference to the case of Raham Ali v. Mussammat Fateh Bibi 2 Criminal Law Journal Reports (1905) 690, where it was held

that when in proceedings for maintenance u/s 488 of the Criminal Procedure Code the parties enter into a compromise, the enforcement of the

compromise conies within the jurisdiction of a Civil Court and not of a Criminal Court. In that case one Mussammat Fateh Bibi applied for an

order of maintenance against her husband Raham AH u/s 488 of the Criminal Procedure Code in the Sub-Divisional Magistrate''s Court Dadan

Khan on 17th August 1902. While the case was pending, the parties compromised, and the Court passed an order u/s 488 of the Criminal

Procedure Code in terms of the compromise whereby Raham All had to give to his wife half his land and a house to recide in or in case of default,

Rs. 9/- a month. Subsequently, Raham Ali divorced his wife. Thereafter on 1st July 1904, Mussammat Fateh Bibi applied for execution of the

order of maintenance. The Sub-Divisional Officer set aside the order of his predecessor as to the gift of half his land and a house and ordered that

the woman receive arrears of payment of Rs. 9/- for the period of her iddat and thereafter that Rs. 5 per month be paid for the maintenance of the

two boys, his sons, by Raham Ali. A warrant for realisation of the total arrears of Rs. 73-14-0 was issued. The proceedings were forwarded by

the District Magistrate for revision on the ground (hat when a compromise had been arranged between the parties to a case u/s 488 of the Criminal

Procedure Code, the enforcement of that compromise comes within the jurisdiction of a Civil and not of a Criminal Court, because the husband no

longer neglects or refused to maintain his wife. There the recommendation was that the case should be dismissed and the order of execution could

not be carried out. The matter came up before Clark C.J., who without giving any separate reasons, agreed with the District Magistrate''s order

dated 6th October 1904, and set aside the order of the Magistrate directing that the maintenance be realised from Raham Ali and observed that

Mussammat Fateh Bibi was free to bring a Civil Suit on the agreement. In other words, the High Court agreed with the reasonings of the District

Magistrate namely that the husband cannot be said to be neglecting or refusing to maintain his wife having sufficient means in view of the

compromise arrived between them. This reasoning has been adopted in some other cases and those cases referred to by Mr. Shah were Sham

Singh v. Mt Nakam Devi AIR 1930 Lah 524 and Budha Ram v. Khem Devi A I.R. 1926 Lah469 . In those cases, it was held that where, in an

application u/s 488, the parties arrive at a compromise, the proper course for the Court is to dismiss the application leaving the parties to enforce

the compromise in Civil Courts. Such a compromise is a bar to an application u/s 489. An order of maintenance passed in accordance with a

compromise cannot be enforced by a Criminal Court. In S.W. Colbert Vs. Mrs. H. Colbert, , the decision in Sham Singh v. Mt. Nakam Devi

(supra) was followed. In other words, it was held that the enforcement of the compromise in a proceeding for maintenance comes within the

jurisdiction of a Civil Court and not a Criminal Court and the Magistrate should relegate the parties to a Civil Court for enforcement of the

compromise and should not incorporate it in his order. Now, that line of reasoning does not appear to be in any way so appealing for two reasons.

One is that it loses sight of the fact that when the husband agrees to pay maintenance to his wife by submitting a compromise statement before the

Court in any proceeding u/s 488 of the Criminal Procedure Code, he is agreeing to pay the same, as he thereby agreed or admitted that she was

so entitled and that she was, as she was deserted and not maintained though bound to. The other point is that an order of maintenance follows

where the requirements of the provision are either established or agreed to in which case no inquiry or trial is needed. But in the main case, the

nature of the agreement was of a different character viz. of payment not only in money, but also in kind which does not appear to be contemplated

u/s 488 of the Criminal Procedure Code. Such an order may wall be a matter for Civil Court to record, and not by the Court of a Magistrate u/s

488 of the Criminal Procedure Code. That being so, it would be difficult to accept those decisions laying down any such principle in general that

the compromise cannot be the basis of an order u/s 488 of the Criminal Procedure Code and that it can be done only by a Civil Court.

At the same time, some decisions were referred to by Mr. Bhatt, the learned Advocate for the wife-opponent to show that on any such

compromise arrived at between the parties, the Court is justified in passing an order and there is nothing illegal in that. Apart from authorities, as

already stated above, there is no provision in the Code which bars any such compromise being presented to the Court by parties with regard to the

claim made in any such petition u/s 488 of the Criminal Procedure Code. When a party against whom any such application is made, were to admit

in his statement the claim, the Court would be justified in passing an order on the basis of any such admission. There is therefore no reason why it

should not be the basis of an order, if put in by them both during the course of hearing of the matter. If the Legislature had so intended, it would

have so said that the order u/s 488 of the Code-shall be passed only on hearing the parties on merits and not subject to any agreement arrived at

between them. It is true that it cannot be passed, if it does not come within Section 488 of the Code. But once it falls thereunder, unless barred by

any provision of law, the Court was bound to accept these terms agreed to by the parties. The order then passed by the Court is perfectly valid

and proper.

The first case referred to by Mr. Bhatt was that of Ahirani Vali Lakha v. Govind Pola AIR 1953 Saurashtra 2. The facts of that case were that

one Ahirani Vali Lakha filed an application against her husband Aher Govind Pola on 6th April 1950 for an order of maintenance of herself and her

minor son u/s 488 of the Criminal Procedure Code. On 12-6-50, a compromise petition was filed by both of them and an order was passed and

recorded in terms of compromise. On 26-9-50, Bai Vali filed an application before the Magistrate complaining that her husband had not observed

the terms of the compromise and for its enforcement. The application was opposed by her husband. The learned Magistrate rejected the

application on the ground that the order dated 15-6-50 in terms of the compromise was illegal as it was beyond the scope of the provisions of

Section 488 of the Criminal Procedure Code for a Magistrate to pass an order in terms of the compromise. Aggrieved by that order, she

approached the Sessions Court, who in turn made a Reference to the High Court of Saurashtra. The High Court held that it was open to the

parties to proceedings u/s 488 to arrive at a compromise as to the amount of the maintenance and request the Magistrate to pass an order in terms

thereof. Such an order is not illegal by reason of being passed upon a compromise. It found support from two other decisions reported in Nirmala

Bala Devi v. Bejay Pada Ganguly AIR 1933 Clause 676 and Ram Saran Das Vs. Mt. Ram Piari, . It further held that u/s 488, a Magistrate is

empowered to pass an order of maintenance in terms of money only. An order providing for maintenance partly in the shape of grain and partly in

money was invalid. Such an order where the maintenance is to be given under the terms of the compromise partly in the shape of grain and partly in

money can well be enforced by a Civil Court. This latter part of the decision has its basis on some other decisions such as Mukta v. Dattu

Mahadev AIR 1924 Bom. 322 , Meghji Vallabhdas Vs. Dayalji Lalji and Company, and Mt. Roshan Bano v. Azim AIR 1945 Lah 59. With

respect, I agree with that view, as that appears in consonance with the reading of Section 488(1) of the Criminal Procedure Code. Thus, it is clear

that when an order passed by the Magistrate is in respect of payment of money only u/s 488(1) of the Criminal Procedure Code on the basis of

any compromise statement filed by the parties before the Court, the Magistrate will be competent to pass such an order on that basis. This is not a

case in which any maintenance allowance is directed to be paid in kind such as in terms of grain or the like as we find in those cases which were

also relied upon by Mr. Sheth for saying that an agreement must be filed in the Civil Court for its enforcement and not u/s 488(1) of the Code.

Section 488(1) of the Code contemplates to pass an order for a monthly allowance for the maintenance of his wife and that again stands confirmed

when it refers to a monthly rate which presupposes the payment in money and rules out giving maintenance in kind.

Mr. Sheth referred to a case in Govindram Narandas v. Ratanbal Nathuram A.I.R.1956 Sau105 for showing that a compromise cannot be

enforced in an application u/s 488 of the Code. In that case, as the facts show, the matter was not settled during pendency of the application

before the Magistrate u/s 488 of the Criminal Procedure Code, and what was sought to be placed before the Court was an agreement arrived at

by the parties providing for separate maintenance in case the wife and husband did not agree and she wished to live separate from him. That

agreement was arrived at between them before and not in the proceedings before the Magistrate, and when such is the case, it is no doubt true that

any such agreement can be enforced in the Civil Court. That case, therefore, can have no application to the facts of this case.

I would refer to some of the decisions of other High Courts which supports the view that such a compromise can be a basis of an order in the

proceeding pending before a Magistrate u/s 488 of the Criminal Procedure Code. In Dr. T.K. Shyammanuvar v. Assanambai Ammal AIR 1958

Mys 190, it was held that enquiry under Chapter XXXVI of the Criminal Procedure Code is a quasi-criminal one. The admission made in the

pleadings can be taken into consideration and acted upon. It is, therefore, within the competence of a Magistrate to accept the representations

made by parties and pass an order u/s 488 Criminal Procedure Code giving effect to the compromise agreed between the parties as to the rate of

maintenance. In Harbans Singh Khosla v. Mst. Gurdev Kaur and Ors. 1967 Cri LJ 1247 it was similarly held hat if the compromise relating to

payment of maintenance allowance falls within the purview of Section 488 of the Criminal Procedure Code and an order is made on the basis of

that compromise by the Magistrate before whom the proceeding u/s 488 are pending, the order can be enforced under Sub-section (3) of Section

The reason being that if the husband accepts the position which the wife has otherwise to prove by evidence, the recording of evidence in

respect of that matter would be a sheer surplusage and useless formality. In Chukkala Mangavaram v. Chukkala Ananalaswami AIR 1931 Madras

185, it was held that although Magistrate is under no necessity to pass an order u/s 488, where the compromise is entirely independent of the

Court, but if a compromise of which the essential part is the passing of an order u/s 488, such an order can be enforced u/s 488. As observed in

the course of judgement, the husband was prepared to consent to judgment without giving the petitioner any further trouble so long as her claim for

maintenance was reasonable and therefore, the Magistrate would be justified in passing orders in terms of this agreement or compromise, a very

sensible arrangement which did not in any way detract from the force of the order. The decisions in AIR 1926 Lah 469 and AIR 1930 Lah 524

were not approved of.

The result it that an agreement entered into prior to the filing of a complaint for awarding of a maintenance to the wife cannot be the basis of an

order u/s 483 of the Criminal Procedure Code. But, when a compromise is arrived at between the parties, in a proceeding pending before the

Magistrate u/s 488 of the Criminal Procedure Code, it can be a basis for passing an order as to the amount of maintenance allowance to be paid to

her and the contentions raised in the proceeding by the party opposing the claim can be taken as either given up, or abandoned, and that he agreed

to be bound to pay maintenance at the rate fixed. The Magistrate, however, would not be justified in passing an order on basis of any compromise

which contemplates payment by kind and not in money. The other part can well be a matter to be taken before a Civil Court.

The present order passed by the learned Magistrate is on the basis of a compromise arrived between the parties in a complaint pending before

him u/s 488 of the Criminal Procedure Code for a certain sum of money for Rs. 125/- per month as maintenance allowance and therefore, there

was nothing illegal in the order passed on that basis. The application is dismissed.