Passey, J. - (1.) THIS is a reference by the Additional District Magistrate, Barnala, under Section 438, Code of Criminal Procedure recommending that the order of the Magistrate 1st Class Dhuri, dated 13 -12 -1952 made under Section 488, Code of Criminal Procedure requiring Balbir Singh to give 10 big has of land to his wife Mst. Balwant Kaur for her and her minor son and daughter's maintenance by 20 -12 -1951 and in case of default to pay Rs. 20/ - on the 20th day of. each calendar month be set aside and Mst. Balwant Kaur left to seek relief in a civil Court. Mst. Balwant Kaur was married to Balbir Singh about fourteen years ago and had borne him three children two out of whom were alive, the son being 6 years old. On 30 -11 -1950, she made an application under Section 488 Code of Criminal Procedure alleging that her husband having developed illicit intimacy with a woman of a low character had brought her to his house, and had turned her (Petitioner) out along with her children. Accusations of cruelty and neglect and refusal to maintain them were also made. Balbir Singh did not deny that he was her has and the two children in question were also admitted by him to be his. He, however, denied the charge of cruelty and refusal or neglect to maintain the applicant -Defendants and resisted their claim to a separate maintenance. He on the contrary urged that Mst. Balwant Kaur had deserted him. He also offered to take back his wife and children. Mst. Balwant Kaur was required to prove her allegations and she closed her case after putting herself in the witness box, examining five other witnesses and putting in certain documents. On 1 -9 -1951 after the next date in the case had been fixed, Balbir Singh produced in Court a document purporting to be one of compromise between the parties. He also then produced a copy of a registered deed whereby he had agreed to give ten big has of land to his wife for her and the two children's maintenance. On the next date, viz., 18 -9 -1951 the wife did not acknowledge the compromise and repudiated it probably because her husband had not given the possession of the stipulated land to her leading her to think that the alleged composition was a subterfuge resorted to him to escape liability. The Magistrate on a joint request by the parties gave them Anr. so that they could come to terms. Three more adjournments were granted and on 12 -10 -1951, the Court having been informed that no compromise could be effected, made an order directing Balbir Singh to produce his evidence in rebuttal. Balbir Singh examined his witnesses on the next two dates. On 13 -12 -1951 after hearing arguments, the Magistrate made the order referred to above. Balbir Singh was given the option to give ten big has of land specified in the order to his wife and children for their maintenance and his liability to pay Rs. 20/ - per mensem to them was to come into existence on his failure to provide them with the land, which was in fact no other than what he had himself by the registered deed dated 31 -8 -51 agreed to give her. Balbir Singh instead of feeling satisfied as the order of the Magistrate did not enjoin upon him to give anything more than what he had himself by the alleged deed of com -position offered to give to his wife and children, took a revision to the A.D.M. Barnala which has been submitted to this Court for acceptance. The Learned A.D.M. has given two grounds in support of his recommendation, firstly, that under Section 488, Code of Criminal Procedure an order for the payment of a cash allowance alone could be made and secondly, that the Magistrate must have on presentation of the deed of compromise dismissed Balwant Kaur's I application directing her to enforce the compromise in a civil Court.
(2.) NOW it is obvious that the alleged compromise was repudiated by the wife in Court at the earliest occasion and it has admittedly not been acted upon. Balbir Singh did not deliver possession of the proposed land to her and it is stated by the Respondent's counsel that in fact that land is not in his (Balbir Singh's) possession even. He himself does not appear to stick to his agreement as ha is not prepared to accept the order of the trial Magistrate which caste the same obligation upon him as he had himself undertaken to discharge by his own agreement, viz., to provide his wife and children with ten big has of land. On no less than five dates, the parties stated that they had not been able to come to terms and finally accepting that position Balbir Singh on 22 -10 -1951 and the next date produced his witnesses in rebuttal. The mere production of a copy of a document alleged to contain the terms of the compromise, the execution and binding nature of which was denied by the wife, could be no proof that the compromise had in fact taken place. The various orders of the trial Magistrate after the so called compromise deed was filed, show that even Balbir Singh was asking for adjournments to effect a compromise. At any rate he led no evidence to support the execution of the compromise which according to him had satisfied his wife and provided evidence against the charge of neglect or refusal to maintain her and her minor children. No compromise having been proved, the Magistrate did not lose Jurisdiction to make the final order in the case: on the merits Shri Nehra had nothing to say. The Magistrate's order giving the husband the choice to provide his wife with ten big has of land is, however, apparently unsustainable, as section 488, Code of Criminal Procedure does not empower a Magistrate to allow maintenance to the wife or child in any other form except a cash allowance. The only order that the Magistrate could under that section maker was to fix within the prescribed limit a cash maintenance for Balwant Kaur and her children, the case under examination, however, the defect in the order of the Magistrate is separable from the other operative portion and can be scored out The liability to pay Rs. 20/ - per month was validly imposed upon Balbir Singh and he shall as from the date of the Magistrate's order pay that amount to Mst. Balwant Kaur every month as maintenance for her and his two minor children with her.;