Padmanabhan vs Bama

This revision is directed against the order in M.P. No. 531 of 1985 in M.P. 110 of 1985 in M.C. 500 of 1978, on the file of the Second

Metropolitan Magistrate, Egmore, Madras.

The revision petitioner is one Padmanabhan. The respondent, Bama is his wife. Bama, the respondent, filed an application under S. 125 Cr.P.C.

claiming maintenance. Parties and their respective counsel made a joint endorsement fixing the maintenance at Rs. 150/- per month. But the

respondent filed a petition in M.P. 531 of 1985 under S. 127 Cr.P.C. claiming enhanced maintenance as she finds herself unable to maintain with

the sum of Rs. 150/- per month. She prayed for a sum of Rs. 400/- per month.

The revision petitioner filed an application contending inter alia that the petition under S. 127 Cr.P.C. by the wife is not maintainable. The

contention taken by the petitioner is that the endorsement on the petition for maintenance under S. 125 Cr.P.C. was made by both the husband

and the wife ''without prejudice to their contentions'' and therefore the petition for enhancement of the maintenance under S. 127 Cr.P.C. is not

maintainable in the absence of a finding that the husband, though having means, has neglected or refused to maintain and that the wife has no means

to maintain herself. His further contention is that the Second Metropolitan Magistrate, Egmore Madras, has no jurisdiction to entertain the petition

as the parties are living at Mambalam and Kodambakkam and the Magistrate at Saidapet alone has jurisdiction to try the petition (This point is

taken only in the additional counter in Cr.M.P. 110 of 1985 and not in M.P. 531 of 1985).

The learned Magistrate found that the petition in M.P. No. 110 of 1985 filed under S. 127 Cr.P.C. is perfectly maintainable and dismissed the

petition filed in M.P. No. 531 of 1985. The revision petitioner is aggrieved and has filed this revision.

Annu Avathanigal Vs. Somasundara Avathanigal, is an authority for the proposition that if the compromise of which the essential part is passing

of an order under S. 488 Cr.P.C. (old Code) such an order can be enforced under S. 488 Cr.P.C. (old Code), but if the compromise is

independent of the Court the court would be under no necessity to pass an order under S. 488 Cr.P.C. (old Code). It was pointed out by the

learned Judge in that case that 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 passed orders in terms of that agreement or compromise, a very sensible

arrangement which will not in any way detract from the force of the order. It must at once be pointed out that in this case the compromise was

made through Court.

The next case is Hashim Hussain Vs. Smt. Rukaiya Bano, . That was a case where an application was filed by one Rukaiya Bano under S. 125

Cr.P.C. claiming maintenance from her husband, Hashim Hussaih. The matter was compromised. The compromise contained five clauses and one

of the clauses was that in the event of the failure of the husband in implementing the terms of the compromise, he will pay a monthly allowance of

Rs. 200/- for the maintenance of Rukaiya Bano. The trial Magistrate passed an order which is to the effect that the parties appear and file a

compromise and that the application for maintenance is decided in terms of the compromise. The Court took the view that the order passed by the

Magistrate is a valid order passed in accordance with law under S. 125, Cr.P.C. The learned Judge of the Allahabad High Court pointed out that

S. 125 Cr.P.C. does not prescribe any particular form in which the final order of the Magistrate should be passed in granting maintenance

allowance to the wife and that the only restriction placed is that the maintenance allowance should not exceed a sum of Rs. 500/-.

Sivarajan v. Meenakshi, ILR (1966) Ker 165 was a case where the wife and the children filed an application under S. 488 Cr.P.C. (old Code)

for maintenance claiming maintenance of Rs. 60/- per month. During the hearing, the husband offered to pay maintenance at Rs. 30/- per month,

and the figure was accepted by the wife. The learned Magistrate then passed an order fixing the maintenance at Rs. 30/- per month. About 3-1/2

years later, a petition was filed by the wife, and children for enhancement of the maintenance amount. The learned Magistrate enhanced the rate at

Rs. 50/- per month. It was urged before the learned single Judge by the counsel for the husband that the original order having been passed as a

result of the compromise, the learned Magistrate has no jurisdiction to enhance the amount, the proper forum to grant such relief being the Civil

Court. The learned Judge of the Kerala High Court took the view that a mere offer and acceptance regarding the rate of maintenance will not oust

the jurisdiction of the Court to act under S. 488 Cr.P.C. (old Code), that an order based on such compromise will still be an order under S. 488

Cr.P.C. (old Code) and the Court is competent to make such alteration in the allowance as provided for in S. 489 Cr.P.C. (old Code).

To the same effect is the ruling in Balak Ram Vs. State, . That was a case where the parties, the husband and the wife, entered into a

compromise that the wife shall be paid an allowance of Rs. 19/- and the amount will not be increased or decreased in future. But the wife filed

application for enhancement under S. 489 Cr.P.C. (old Code). That was rejected by the Magistrate. Another petition was filed for the same relief

and that was also rejected. In a third application also she prayed for the same relief. It was contended that the earlier order rejecting enhancement

has become final and that the petition is not maintainable in law. Rejecting this argument, the learned single Judge of the Allahabad High Court

pointed out that the compromise filed in the case merged into the order of the Court and it is the Court''s order which is sought to be modified by

the application under S. 489(1) Cr.P.C. and there is nothing in S. 488(1) Cr.P.C. : which takes away the jurisdiction of the Court to modify its

own order even though it may have been passed on the basis of a compromise. It should be noted that in that case the parties agreed that the

amount of Rs. 19/- will not be increased or decreased in future. Not with standing such an agreement, the court held that if there has been a change

in circumstances of any person receiving or paying a monthly allowance under S. 488 Cr.P.C it is always open to the court to alter the allowance

under S. 489(1) Cr.P.C.

In N.E. Vasudevan Nair Vs. Kalyani Amma Gouri Amma and Others, , the Kerala High Court held that the terms as to maintenance are

independent of other terms of the compromise and the criminal Court can found its order as to maintenance on a compromise and enforce it, that if

the Court passes an order in terms of the compromise, then it is that order and not the compromise that is sought to be enforced subsequently. To

the same effect is the decision in Punn Deb Vs. Mt. Bishnuli, . It is manifest from the rulings referred to that the Court has jurisdiction to enforce its

own order under S. 488 Cr.P.C. even though it is passed on the basis of a compromise.

But what is now contended by the counsel for the revision petitioner is that the compromise entered into between the parties is without

prejudice to the contentions of the parties'' and that makes all the difference and that would amount to saying that the petition under S. 125 Cr.P.C.

claiming maintenance would still be pending in law and not finally decided on merits (ground (d) of the memorandum of grounds of revision). He

invited my attention to Umesh Jha v. State, AIR 1956 Pat 425, where a Division Bench of Patna High Court on a money transaction interpreted

the words ''without prejudice''. They stated that the words ''without prejudice'' import into any transaction that the parties have agreed as between

themselves the receipt of money by one and payment by the other shall not of themselves have any legal effect on the rights of the parties and they

shall be open to settlement by legal controversy as if the money has not been paid. But, it is not clear to understand as to what exactly the parties

meant by saying ''without prejudice to their contentions'' when they made the endorsement, It is clear from the endorsement that the husband has

not questioned the liability to maintain his wife by paying a monthly maintenance of Rs. 150/- while the wife on her part agreed to receive the

maintenance amount of Rs. 150/-. It is on that compromise, the learned Magistrate passed the following order -

''Petitioner present. Petition allowed in terms of joint endorsement.''

The compromise itself runs thus -

Without prejudice to the contentions of both the parties and with a view to amicable settlement, by consent maintenance at Rs. 150/- (Rs. one

hundred and fifty only) per month is fixed and is payable from 1st July, 1978, and the first instalment is payable on or before 15th August, 1978

and subsequently on or before the 15th of the succeeding month. Default will entail execution through court. The respondent will send the

maintenance amount directly to the petitioner. Dated 1st July, 1978.

One of the conditions in the compromise is that default will entail execution through court. In the face of this condition it is difficult to understand the

contention of the learned counsel for the petitioner that the petition under S. 125 Cr.P.C. must be deemed to be still pending. Learned counsel for

the respondent also produced before me what is termed as ''the maintenance order'' passed by the Second Metropolitan Magistrate Madras. It

states thus :-

Maintenance Order

Government of Madras In the II Metropolitan Magistrate''s Court, Egmore, Madras Application No. M.C. 500 of 1978.

Before Thiru v. Natarajan, M.A.B.L. M.C. 500 of 1978

Whereas it has been duly proved that one Padmanabhan having sufficient means neglects to maintain one Bama his wife and legitimate children

respectively, who is unable to maintain herself.

It is hereby ordered under the provisions of S. 488 of Act V of 1898, that the said Padmanabhan do pay unto Bama a monthly allowance of Rs.

150/- (Rs. one hundred and fifty only) for the maintenance of herself with effect from 1-7-1979 children as aforesaid dated Madras, the 1st day of

July, 1978

Seal

Sd/-

..........

II Metropolitan Magistrate.

The revision petitioner''s counsel contended that this is a printed form to collect maintenance amount by warrant if the maintenance is not paid and

that the contents of this printed document will not amount to an order passed by the learned Magistrate. But, I earlier pointed out that this

document shows that it is a maintenance order. He then contended that the Magistrate had no materials before him to show that the revision

petitioner has sufficient means and that he neglected to maintain the respondent, his wife. But then that is a plea which he cannot take now, as the

order passed under S. 125 Cr.P.C. has become final. The question is if there is an order under S. 125 Cr.P.C. could not the wife file an

application under S. 127 Cr.P.C. to enhance the maintenance granted. As pointed out earlier, there is nothing in S. 127 Cr.P.C. which takes away

the jurisdiction of the Court to modify its own order even though it is passed on the basis of a compromise. The words ''without prejudice to the

contentions of the parties'' will not alter the situation. If there has been a change, in the circumstances of any person receiving or paying a monthly

allowance under S. 125 Cr.P.C. it is always open to the Court to alter the amount under S. 127 Cr.P.C. That means, this section would apply

both to the husband and to the wife, As it has been held that the Magistrate has jurisdiction to enforce the order passed under S. 125 Cr.P.C., he

would have jurisdiction to entertain an application under S. 127, Cr.P.C. and deal with it in accordance with law. It is within the competence of the

Magistrate to accept a compromise made by the parties and to pass an order under S. 125, Cr.P.C. giving effect to the terms agreed between

parties as to the rate of maintenance. In Punn Deb Vs. Mt. Bishnuli, , to which reference was made already, the learned Judge pointed out that

after a compromise has been arrived at, the court has still to pass an order and if it passes an order in terms of the compromise, it is that order and

not the compromise that will he enforced subsequently. Therefore the petition under S. 127 Cr.P.C. is perfectly maintainable. The order of the

Magistrate is correct.

One other contention is that the Second Metropolitan Magistrate Egmore, Madras, has no jurisdiction to entertain this application and that the

application ought to have been filed before the Magistrate at Saidapet. But the learned Second Metropolitan Magistrate found that the Court at

Egmore has jurisdiction. He found that M.C. 500 of 1978 was filed when the wife was at Nungambakkam, within the jurisdiction of the Court at

Egmore. Under S. 126 Cr.P.C. proceedings under S. 125 Cr.P.C. can be taken against any person where he is or where he or his wife resides or

where he last resided with his wife or, as the case may be, with the mother of the illegitimate child. Jurisdiction has to be decided with reference to

the place where the parties resided at the time of filing of the petition under S. 125(1) Cr.P.C. It is therefore manifest that the court at Egmore has

jurisdiction to try the petition, the revision is dismissed.

An oral application for leave to appeal to Supreme Court is sought. The question that was argued was whether the Court will have jurisdiction

under S. 127 Cr.P.C. to enhance the maintenance, when the order u/s 125 Cr.P.C. is passed on the basis of a compromise. That has been

covered by judgments of various Courts and I have held that there is nothing in S. 127 Cr.P.C. which takes away the jurisdiction of the Court to

modify its own order even though it was passed on the basis of a compromise. Therefore, this is not a fit case for granting leave to appeal to

Supreme Court. Leave refused.

Revision dismissed.