- (1.) C. A. Rahim, J. This writ petition is directed against the judgment and order of the Sessions Judge, Azamgarh, dated 31- 8-1995 passed in Criminal Revision No. 195 of 1995 and the order passed by the Vth Addl. Munsif- Magistrate, Azamgarh, on 17-5-1995 in Misc. Case No. 159 of 1992 under Section!28 Cr. P. C.
(2.) 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 be-I half of petitioners No. 2 and 3, her minor children. THE trial Court allowed the ap plication 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 sub sequently the stay order was vacated and the writ petition was dismissed for default. Thereafter the parties filed a com promise application on 24-7-1992 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 ap plication for maintenance and accordingly thecase was dismissed on 24-7-1992. Subsequently on 4-12-1992 petitioner No. 1 moved an application under Section 128 Cr. P. C. for issuing a direction for payment of arrear main tenance which was allowed. A revision was filed against the said order. The learned Sessions Judge allowed the Revision and quashed the order dated 17-5-1995 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 conten tion of the respondent No. 2 that she left the house out of her own accord is not con sidered till then she is not entitled to receive any maintenance.
(3.) LEARNED counsel for the petitioners has referred the case of Hashim Hussain v. Rukaiya Bano 1979 AWC 510, and sub mitted that when the matter was com promised and the respondent No. 2 had agreed to pay Rs. 500/- towards the main tenance 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 main tenance 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 com promise to specify each and every condition in his order which was included in the com promise. But when he has mentioned that the case is decided 'in terms of the compromise' it obviously implies a direc tion that each and every condition incor porated 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 oikuppus-wami 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 be comes automatically ineffective and unenforce able. No formal cancellation of that order is neces sary. 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. ";