Sushila Devi and Anrs. vs Sessions Judge Azamgarh & Anr.

C.A. Rahim, J.—This writ petition is directed against the judgment and order of the Sessions Judge, Azamgarh, dated 3181995 passed in Criminal Revision No. 195 of 1995 and the order passed by the Vth Addl. MunsifMagistrate, Azamgarh, on 1751995 in Misc.Case No.159 of 1992 under Section!28 Cr. P.C.

The fact is that the petitioners filed a case under Section 125 Cr. P.C. against the respondent No. 2 on her behalf and on beI half of petitioners No. 2 and 3, her minor children. The trial Court allowed the application and fixed Rs. 150/ per month for the maintenance of her two minor children and rejected the application of their mother, petitioner No.1.A revision was filed by her which was allowed and the said order of the Munsif Magistrate was set aside. The case was remanded for a fresh decision according to law. Against the said order of remand, respondent No. 2 went in writ jurisdiction before the High Court where operation of the order was stayed on condition to deposit Rs. 2500/ but subsequently the stay order was vacated and the writ petition was dismissed for default.

Thereafter the parties filed a compromise application on 2471992 with the condition that if the respondent No. 2 treats the petitioner with cruelty in that event he will be liable to pay Rs. 500/ per month to the petitioner and pay maintenance to the children. The prayer was to reject the application for maintenance and accordingly thecase was dismissed on 2471992.

Subsequently on 4121992 petitioner No. 1 moved an application under Section 128 Cr. P.C. for issuing a direction for payment of arrear maintenance which was allowed. A revision was filed against the said order. The learned Sessions Judge allowed the Revision and quashed the order dated 1751995 passed by the learned Magistrate. In that order it is held that when respondent No. 2 agreed to pay Rs. 500/ in case of causing assault and torture to petitioner No. 1 and since contention of the respondent No. 2 that she left the house out of her own accord is not considered till then she is not entitled to receive any maintenance.

Learned counsel for the petitioners has referred the case of Hashim Hussain v. Rukaiya Bano 1979 AWC 510, and submitted that when the matter was compromised and the respondent No. 2 had agreed to pay Rs. 500/ towards the maintenance on certain conditions he is bound to pay when those conditions are infringed. So according to him there is no illegality in the order passed by the trial Magistrate. In that decision it was held that Section 125 Cr. P.C. does not prescribe any particular form in which the final order of the Magistrate should be passed.While granting maintenance allowance to the wife. The only restriction placed is that the maintenance allowance should not exceed a sum of Rs. 500/. It is open to the Magistrate while deciding the case in terms of the compromise to specify each and every condition in his order which was included in the compromise. But when he has mentioned that the case is decided ''in terms of the compromise'' it obviously implies a direction that each and every condition incorporated in the compromise shall be a part of the order and binding upon the parties.

Mr. M. A. Siddiqui, appearing for the respondent, has referred the case oiKuppuswami v. Jagadambal, AIR 1947 Madras 423, wherein it is held:

"When once after the passing of an order of maintenance under Section 488 the husband and wife have resumed cohabitation, the order becomes automatically ineffective and unenforceable. No formal cancellation of that order is necessary. If there is neglect or refusal on the part of the husband subsequently, that would furnish a ground for the wife to make a fresh application, but she would not be entitled to claim the payment of maintenance on the strength of the order passed before the resumption of cohabitation."

The learned lower revisional Court held that according to terms of the compromise there was no more dispute between the husband and wife. They were to live together and in the case the respondent No.2 treats her with cruelty in that event he will be liable to pay Rs. 500/ to the petitioner and he will also be liable to maintain his children. In the prayer clause it was prayed that the application for maintenance be rejected and the case be dismissed without any j udgmen t. The compromise was verified and the learned Magistrate decided the case accordingly on 2471992.

So it appears that the petition filed for allowance maintenance for the petitioner No. 1 and her two children was dismissed in view of the compromise petition filed in between the parties. Thereafter they began to live as husband and wife for certain days. In view of the decision ofKuppuswami (supra) even if there was a decree of maintenance it would have become unenforceable due to resumption of cohabitation in between the parties but in this case there was no decree for maintenance, on the other hand the said application was dismissed on compromise.So if there was any infringement of the conditions there should be an adjudication in ''.hat respect. There was also counter allegation that the petitioner left the house of her husband voluntarily. So it is required to be seen which version is correct. Proceeding under Section 128 Cr. P.C. can only be initialed when there is an order passed under Section 125 Cr. P.C. If there is no order of maintenance under Section 125 Cr. P.C. there can be no exception. It is clear that by an order dated 2471992 the proceeding was terminated.So it is necessary on the part of the petitioner to file a fresh application taking the plea of compromise and the infringement of conditions thereto.It is required to be proved in that proceeding that there was infringement for which the amount agreed upon be enforced. On merit it is required to be decided and a fresh order of maintenance be passed under Section 125, Cr. P.C.The said dispute having not been adjudicated the petitioners are not entitled to proceed for exception straightway.

I do not find any merit in this writ petition and the same is dismissed.