This is a criminal revision case, which has been preferred against the judgment of the Additional First Class Magistrate, Devakottai in M. C. No. 4 of 1951.
The short facts are: Sivagami Achi, the respondent before us, is the lawfully wedded wife of Krishnappa Chettiar. Krishnappa Chettiar and Sivagami Achi could not carry on their married life by 1948. This Chettiar, as is common in these parts, was keeping a concubine and wanted to take a second wife also. Therefore, the husband and wife entered into an arrangement, which has been marked as Ex. D-1, and it is nobody's case that this arrangement was not entergd into or that the husband is going behind Ex. D 1.
The relevant passage in Ex. D-1 is as follows:
“As the party No. 1 amongst us is about to marry a second wife and as the party No. 2 above could not hereafter live amicably with party No. 1 and in view of the above factor, accounts were looked into with the help of mediators and it was settled that party No. 1 should pay and has accordingly paid party No. 2 a sum of Rs. 5500. As party No. 2 desires hereafter to live separately and has asked party No. 1 to make provision for her maintenance till her life-time and party No. 1 has agreed to the same and should accordingly pay party No. 2 a sum of Rs. 100 per annum on or before the 10th of the month (of) Thai every year till her lifetime, in default party No. 2 could take steps to recover the same. Out of the sum of Rs. 5500, there is a balance of Rs. 4500 after reducing Rs. 1000 paid in cash for which sum the party No. 1 has executed a mortgage deed in favour of party No. 2. Till this entire principal and interest is paid, the party No. 1 shall be bound to pay without any plea of limitation the sreethanam money of Rs. 1362-4-0 in respect of which a hundi has been executed to this effect both of us have agreed and executed this written deed.”
There was a receipt executed by Sivagami Achi which has been marked as Ex. D-2 and which can be considered to be the counter part of Ex. D-1. It runs as follows:
“According to the agreement entered into between us, you have to pay me Rs. 100 as and for my maintenance till the 10th day of Thai this year. I have this day received from you cash for which I have executed this receipt.”
Subsequently, the affairs of this Chettiar seem to have got into a fair amount of muddle and he seems to have lost his income from the Federated Malay States and other places and, what is more, his affairs in Ramanathapuram district itself seem to be not in flourishing circumstances and, therefore, the Chettiar says that he has taken that refuge which is open to persons of that description, viz, a religious life. The wife has now come forward with a petition under S. 488 Cr.P.C asking for maintenance of Rs. 100 per month instead of Rs. 100 per annum, which has been secured for her in Ex. D-1.
The learned Additional First Class Magistrate gave a complete go by to Ex. D-1 and came to a conclusion of his own that the wife should be given Rs. 25 per month and hence this criminal revision case. The short point taken is that when the parties have amicably settled the maintenance to be granted to the wife and when the husband and wife have been living apart by mutual consent, there was no jurisdiction for the Magistrate to entertain this application under S. 488 (4) Cr. P. C.
There can be no doubt that a Magistrate, purporting to act under this section, cannot assume the functions of a civil court and give judgment in accordance with a bond evidencing a compromise entered into between a husband and a wife. Where a claim for maintenance is amicably settled by the parties, the Magistrate should simply dismiss the petition if pending before him:
Lingadu v. Labbakka 2 weir 629, Rahim Bibi v. Khair Din [1888] P.R.Cr 42 and Raham Ali v. Fatch Bibi [1905] P.R.Cr 39. In Madras High Court (Cr R. C. No. 489 of 1903) a husband and wife came to a settlement outside the court, whereby the husband consented to maintain the wife. It was held by the High Court that the Magistrate had no longer any power to make an order under this section as it could no longer be said that the husband was refusing to maintain the wife.
In this case, if the wife was dissatisfied with the miserable pittance secured for her under Ex. D-1, there are courses open to her like filing a civil suit for denouncing Ex. D-1 or she can ask for enhanced maintenance on account of the rise in the cost of living or she can file a suit on the ground that Ex. D-1 was executed by her without fully understanding its import and that it is an invalid document. It is not for us to advise this respondent as to the many courses open to her for getting enhanced maintenance if she deserves it.
This petition is allowed and the order of the lower court is set aside and the respondent is left to her own reliefs in the civil court, if so advised.
N.T.RPetition allowed