MOHINI KAPUR, J. - (1.) THE petitioner and the non-petitioner are husband and wife and a decree for divorce was passed by the District Judge, Bundi on basis of a compromise arrived at between them. Before looking into this compromise it may be stated that three proceedings were pending between the parties. THE husband instituted proceedings under Section 13 of the Hindu Marriage Act in the court of District Judge, Bundi and the wife had moved an application under Section 125 Cr. P. C. in the court of Munsif and Judicial Magistrate, Tonk. Another criminal case was pending against the petitoner-husband and others for the offences under Sections 494 read with 109 IPC and this was also pending in the court of Munsif and Judicial Magistrate, Tonk. While all these three cases were pending, the parties arrived at a compromise in the proceedings under Sec. 13 of the Hindu Marriage Act and this compromise was presented before the District Judge, Bundi on 2nd February, 1988. By virtue of this compromise, a sum of Rs. 35,000/- was paid to the wife and it was agreed that in future she would not be entitled to any maintenance from the husband. It was also mentioned that the wife would not be entitled to any maintenance in the proceedings under Section 125 Cr. P. C. and she would apply before that court for concluding the proceedings. A condition was imposed that if in accordance with this compromise, the wife did not get the proceedings terminated, a certified copy of the compromise would be produced before the court and then the proceedings would be dropped. Similarly it was agreed in the aforesaid compromise dated 2. 2. 88 that the wife would move an application withdrawing the case under Section 494 read with 109 I. P. C. and in case she did not withdraw the same, a certified copy of the compromise would be presented before the court and it would be stipulated that there has been a compromise in that case also. THE parties further agreed that the marriage be dissolved by a decree of divorce. This compromise was verified by the District Judge, Bundi and in terms of the compromise a decree for divorce was passed. It has been mentioned in the decree that a sum of Rs. 35,000/- was paid to the wife.
(2.) IN pursuance of this compromise, the wife Geeta Devi did not file an application for withdrawal of the application under Section 125 Cr. P. C. and for the case under Sections 494 and 109 IPC. IN such circumstances, the husband petitioner submitted a certified copy of the compromise before the Munsif and Judicial Magistrate, Tonk in both the cases and requested the court that in view of the compromise both the proceedings should be dismissed. The present order deasls with the proceedings on the application under Section 125 Cr. P. C. It may be mentioned here that at the time when the compromise decree was passed in the divorce petition, two other compromise agreements were also recorded and signed by both the husband and wife which were to be presented before the Munsif & Judicial Magistrate, Tonk for purpose of verifica-tion. The wife resiled and stated that she was not explained the full implication of the compromise and that she had only compromised the divorce petition and not the proceedings under Section 125 Cr. P. C. As the compromise was not verified, the Magistrate proceeded to decide the plea raised by the husband and wife. It was held that as the parties did not present and got the compromise verified hence, the application under Section 125 Cr. P. C. could not be dismissed on the basis of a compromise in the divorce petition. It was held that the com-promise in the divorce petition and the observations made in the decree could, not be made basis for the disposal of the application under Section 125 Cr. P. C. and as such, the application moved by the husband was dismissed. Against this order, the petitioner has filed this present petition. The learned counsel for the petitioner has contended that when the parties compromised the divorce petition before the District Judge, Bundi they made it very clear that two other criminal proceedings had also been compromised and they would be withdrawn by the wife. It was further stipulated that in case, the wife did not withdraw these cases, a certified copy of the compromise in the divorce petition would be filed and on that basis the criminal proceedings would be terminated. It is contended that when the compromise was verified by both the parties before the District Judge, Bundi, then it is not open to the wife to say that the compromise was not explained. It has been pointed out that the wife had preferred an appeal against the compromise decree passed in the divorce petition and that was dismissed. On the other hand, the learned counsel for the non-petitioner wife has contended that a civil court cannot give a direction to a criminal court to record a compromise and act upon it. A compromise arrived at in one proceeding cannot be made binding in the other. The compromise application, which was presented before the criminal court did not contain the signatures of both the husband and wife and thus cannot be acted upon. A compromise can be acted upon only when it is accepted by both the parties before the court where the proceedings are pending. Referring to Section 41 (d) of the Specific Relief Act, it has been contended that the order of the District Judge Bundi is in the nature of an injunction and as such, an injunction directing a court to proceed in a particular manner cannot be issued. In this connection, Section 127 (3) (b) sub clause (4) and 127 (b) (4) have also been referred to by the learned counsel for the petitioner. These provisions are applicable for purpose of making alteration in the main tenance allowance. Hence, before looking into these provisions, Section 125 Cr. P. C. be looked into for purpose of finding out as to what is the position when the wife accepts a lump sum maintenance and compromise for passing a divorce decree. The main section 125 Cr. P. C. does not refere to the acceptance by wife any amount under any customary or personal law, applicable to the parties. However, it can be said that the provisions of Sec. 127 Cr. PC. can be looked into while determining the amount of maintenance to which the wife is entitled. If it is the case of the husband that the wife agreed for a divorce and in consideration accepted a fixed amount and volunterily surrendered her rights for maintenance than this aspect can be taken into consideration while deciding whether the wife is entitled to some maintenance or not. For purposes of Section 125 Cr. P. C. any wife, includes a woman who is divorced or has obtained divorce and has not remarried, Section 125 Cr. P. C. is applicable in the case of such woman and all aspects have to be considered while fixing an amount of maintenance which can be allowed to the wife.
(3.) WHEN the wife has received a sum payable either as compensation for consenting to a divorce decree or as a customary right or under the provisions of personal law at the time of divorce, then it is for the husband to bring these facts to the knowledge of the court so that a proper order may be passed. It is the Magistrate before whom, the application is pending, who is to take a decision and another court namely the District Judge, where the divorce petition is pending cannot issue directions as to how the application under Section 125 Cr. P. C. is to be disposed of. In Smt. Rukhsana Parvin vs. Saikh Mohd. Hussain (1), Rai Tahira vs. Ali Hussain Fissalli Chothia (2) and Kamalakshi vs Sankaran (3), the provisions of section 127 (3) (b) have been considered and it has been held that where a divorced wife receives a whole sum payable under personal law then, subsequent application for maintenance under Section 125 Cr. P. C. is barred. The situation in present case is not whether the application under Section 125 Cr. P. C. should be dismissed as compromised but what is to be seen is, can the application be dismissed by virtue of the averments made in the compromise before the District Judge, Bundi which has been made basis of a decree. Whether the proceedings should be dropped or continue can be decided by the court where the proceedings are pending or in an appeal or revision arising out of the same proceedings but in some other proceedings this cannot be done. The District Judge, Bundi was not seized of the matter of grant of maintenance under Section 125 Cr. P. C. and when he could not have disposed the application, he could not have made any direction with regard to these proceedings. Hence, the decree in the civil court cannot be made a basis for a compromise in the proceedings' under Section 125 Cr. P. C. and the same cannot be dismissed because of the compromise in the divorce petition. As the compromise petition filed in the proceedings under Section 125 Cr. P. C. has not been accepted by the non-petitioner, wife, then Magistrate is to proceed with the same and as observed above, it can be said that while deciding the application, the payment of Rs. 35,000/- to the wife which is an admitted petition has to be taken into consideration alongwith the other provisions contained in Section 127 (3) (b) (c) Cr. P. C. while deciding the application. ;