Decided on October 28,1953

P. MADHAVAN Appellant
MUNIR BEGUM Respondents


Somasundaram, J. - (1.) This is an application by one Madha-van to revise the order of maintenance passed by the Chief Presidency Magistrate, Madras, under Section 488, Crl. P. C. The petitioner in the lower court was a Muslim lady and there is no dispute about the fact that the petitioner and the . respondent do not enjoy the legal status of husband and wife, despite the fact that they were living as husband and wife. The petitioner herein ap-pears to have executed an agreement, Ex. P-1, by which he agreed to pay Rs. 40 to the petitioner and child. In view of this agreement, although the woman petitioner in the lower court was not the wife, it was ordered that he should pay Rs. 15 to the woman and Rs. 7-8-0 to the child.
(2.) The counter petitioner in the lower court the aforesaid Madhavan has filed this petition to revise this order on the ground that the Court cannot pass an order under Section 488, Crl. p. C. even though both the parties consent to such an order, when the conditions of Section 488, Crl. P. C. are not complied with. Under Section 488, only a wife can claim her maintenance and not a mistress or a concubine. In this case, the woman is certainly not entitled to claim maintenance, as she is not the wife of the petitioner herein.
(3.) The question is whether the consent of the other person to pay -maintenance can enable the court to pass an order under Section 488, Crl. P. C. It has been held in -- 'Viramma v. Narayya', 6 Mad 283 (A), that even though there is an agreement between the husband and the wife by which the husband agrees to maintain his wife by giving her a house and jewels and by delivering to Her annually a certain quantity of grain and money, such an agreement cannot be made the subject of an order under Section 536. Crl. p. C., which is Section 488 of the present Code, nor could it be enforced under the provisions of this section. In -' Lingadu v. Labbakka', 2 Weir 629 (B), the wife applied for maintenance against her husband and the dispute was privately adjusted out of Court by the husband executing a bond in favour of his wife by and under the terms of which he agreed to give the wife some land and Rs. 50 in money. The Magistrate recorded the judgment for the plaintiff in the terms of the compromise. It was held by this Court that the Magistrate cannot assume the functions of the civil Court and give a Judgment of this character which he has no jurisdiction to carry into effect. In -- 'Pal Singh v. Mt. Nihal Kaur', AIR 1932 Lah 349(2) (C), the terms of compromise were Rs. 200 per annum to wife, separate residence in husband's village for wife and daughter, permission to leave village on festive occasions and after the marriage of the daughter, the maintenance to be reduced to Rs. 10 per mensem. It was held that the compromise cannot be given effect to by the Magistrate, even so far as the rate of maintenance is concerned if that part of the compromise is such as cannot be enforced separately and with regard to the other conditions of the compromise, which lie outside the scope of this section. In short, the principle behind these decisions is that in respect of a compromise entered into between the parties either before the filing of the application, or after the Sling of the application, only that portion of it which can be enforced under Section 438, Crl. P. C. can be given effect to. As stated already, under Section 488 a concubine or mistress cannot claim maintenance and an agreement or a consent to pay maintenance can-not, therefore, be the subject of an order under Section 438, Crl. P. C.;

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