SARASWATI DEBI Vs. NARAYAN DAS CHATTERJEE

JUDGEMENT

(1.) THE facts which have given rise to this Reference are stated with sufficient fullness in the letter of reference by the Additional District Magistrate of the 24-Parganas. THE District Magistrate has asked this Court to set aside the order refusing to entertain proceedings under Section 488, Criminal P. C, at the instance of Saraswati Debi. I have heard Mr. Basu against the Reference and Mr. Bhattacharji in support of the Reference. Mr. Basu contends that having regard to the fact that there is an agreement between the husband and the wife, that the amount of maintenance should be Rs. 7 per month, the agreement is enforceable in the civil Court and the jurisdiction of the criminal Courts is ousted, and he has referred to a number of rulings in support of his contention. I have examined those decisions and I do not think that the states of facts in tho3e decisions resemble the facts in the present case. It has been held that where there is a decree declaring the wife entitled to maintenance as against the husband the jurisdiction of the criminal Court is ousted for the simple reason that the relief can be obtained by the wife against the husband by executing the decree for maintenance. As has been pointed out by the learned Judge in the case of E.C. Kent V/s. Mrs. E.E.L. Kent A.I.R. 1926 Mad. 59: THE existence of the order directing payment of maintenance is not sufficient to oust the jurisdiction of the Magistrate, for a mere order of maintenance is not equivalent to maintaining the wife, and the order, whatever may be its force or nature, cannot take away the Magistrate's jurisdiction so long as the husband neglects or refuses to maintain the wife.

(2.) IN the Madras case there was an offer on the part of the husband to maintain the wife, and it was held that the mere offer to maintain was not sufficient. It appears that, notwithstanding this agreement, arrears of maintenance for one year accrued, and it appears that the agreement is not being acted upon in that sense, and I am disposed to think that anything short of a decree entitling the wife to maintenance is not sufficient to take away the jurisdiction of the Magistrate. The result is that the Reference is accepted and the Magistrate is directed to entertain the application under Section 488, Criminal P. C., and proceed to deal with the same in accordance with law. The application will be heard by a Magistrate other than the Magistrate before whom the application was made.