C.G.Suri, J. - (1.) THE facts of the case have been given in detail in the order of reference of the Additional Sessions Judge, Gurdaspur, recommending revision of the order passed by the Judicial Magistrate, 1st Class, Gurdaspur, on 31st January 1968 on the applica -lication of Smt Rano Respondent under Section 188 Code of Criminal Procedure for claiming maintenance from her husband Shri Dharam Singh, Petitioner.
(2.) AFTER Smt. Rano had examined her evidence in support of her averment that her husband Dharam Singh was refusing and neglecting to maintain her, Dharam Singh made an offer on 31st January, 1963, which was acceptable to his wife. By mutual agreement arrived at the same day, the maintenance allowance was fixed as Rs. 60/ - per month and maintenance was made payable with effect from 1st March 1968. So far as this goes this was a perfectly valid order but Dharam Singh was still given a chance to take back his wife under his roof and to rebut the finding that he was neglecting and refusing to maintain his wife. As a token of his bona fides he undertook to deposit Rs. 500/ -in a Bank in the name of his wife and the amount was not payable to Smt. Rano if Dharam Singh treated her in a proper manner. It was only in the event of the Petitioner's failure to properly treat Rano that the amount was to become payable to her. Anyhow, for reasons best known to Dharam Singh, this concession has not been availed of by him and there is no question of any circumstances having intervened which may prevent the enforcement of the maintenance order agreed to by the parties. In R. Jeearatnam v. The State of Madras1, the Hon'ble Judges, of the Supreme Court were pleased to observe that where the valid part of an order or transaction could be separated from the invalid part without materially prejudicing any of the parties, there was nothing to prevent the Court from enforcing the valid and separable part of the arrangement. The learned Additional Sessions Judge may appear to have been misled by the head note of the ruling mentioned in his order of reference namely Nathuram v. Smt. Ramsri2. In that case the Magistrate had passed an order whereby it was made a condition precedent that the wife was to go back and live with her husband and she was to get a certain specified amount towards her maintenance only if it was lound that she was not being treated properly. There was no finding that the husband was refusing or neglecting to maintain the wife and the conditions for passing of a maintenance order were not found to exist. In our case the term of the compromise to which the Petitioner has taken exception was more of a concession to him rather then a condition precedent to the enforcement by the wife of the maintenance order and by making a Bank deposit of Rs 500/ - by the specified date he could get the enforcement of the older against him to be postponed or suspended. The condition having not been satisfied by the Petitioner the order passed on the basis of the compromise between the parties was a simple order for the payment of maintenance allowance at a certain agreed upon rate from a specified date and there was nothing illegal or improper in so far as the maintenance order goes The additional term of the compromise only enabled the husband to establish his bona fides and to displace the derogatory finding that he was refusing and neglecting to maintain his wife. The trial Magistrate had found that all the requisite conditions for the passing of a maintenance order were proved to exist and he had not only taken into consideration the statements made by the parties at the time of the compromise but also the unrebutted evidence examined by Smt. Rano. Punn Deb v. Mr. Bishnuli3 which was distinguished in the ruling relied upon by the learned Additional Sessions Judge had held that an order for maintenance passed on compromise could be enforced in the Criminal Court which had passed that order. In that case the husband had agreed to provide maintenance in kind to the wife but had failed to honour his part of the agreement. The wife therefore applied under Section 489 of the Code of Criminal Procedure for conversion of the maintenance allowance in kind to maintenance allowance in cash. It was held that there was no obstacle in her way and that the maintenance order passed on a compromise of the parties could be enforced and varied by the Criminal Court which had accepted that compromise. A Division Bench ruling in Pal Singh v. Mr. Nihal Kaur4 was then related upon by the Petitioner's counsel. The maintenance order passed on a compromise was not enforced because it amounted to an agreement between the husband and the wife to live separately and the conditions of the grant of a maintenance allowance under Section 488 of the Code of Criminal Procedure were not satisfied. It was, in fact, recognized that there was no judicial pronouncement laying down the general principle that a compromise could not be enforced by a Magistrate acting under Section 488 of the Criminal Procedure Code. The rulings cited by the Petitioner's counsel might have applied if the Petitioner had made the bank deposit in time and if it had become necessary for the Court to decide on the basis of evidence to be examined whether the husband had or had not treated the wife properly. As the concession shown to the husband was not availed of by him, the maintenance order passed on a compromise of the parties is simply an order for the payment of maintenance allowance at the agreed rate from a certain specified date and there could be no valid objection to its enforcement by the Court that passed the order Ramzan v. Mr. Sahib Bibi5 is no longer good law as it denied the first wife the right to live separately in spite of the fact that the husband had contracted a second marriage and the reason given was that such a second marriage was recognized by the personal law of the parties. Amending Act No. 9 of 1949, however, introduced a clause under the first Proviso to Sub -section (3) of Section 488 of the Code of Criminal Procedure laying down that if a husband had contracted marriage with another wife or was keeping a mistress, it shall be considered to be just ground for his wife's refusal to live with him. This ruling is therefore no longer good law after the amendments made in 1949 in Section 488, Criminal Procedure Code.
(3.) FOR reasons given above. I find that the maintenance order passed in favour of Smt. Rano Respondent on the basis of a compromise is enforceable in the Criminal Court that had passed this order and that if the Petitioner has failed to take advantage of a concession shown to him, he has no one else to blame.;