1. This is a Reference under section 438 of the Code of Criminal Procedure made by the Sessions Judge of Burdwan. It relates to proceedings under section 488 of the Code of Criminal Procedure instituted by one Parul Bala Debi against her husband, Satish Chandra Bhattachaijee. It appears that there were sortte proceedings of this nature which were icfructuoas and were struck off by the Sab-Divisional Magistrate on the 2nd April 1915; but the laiy after that made another application on the 8th July 1915 which resulted in the Sub-D visional Magistrate's making, on the 14th September 1915, an oraei in her favour greeting the husband to pay her maintenance at the rate of Rs. 10 per mouta. Tee hadband, it appear, is employed by the East Indian Railway Company. He was, at the time when the ??? were instead in receipt of a moatuy saiaty of Rs. 45 which was now risen to Rs. 76 a month. The laiy was at the tims residing elsewhere, but towards the end of the year 1918, she returned to har husband and lived with him for a few months. While she wich-him, a petitions filed in the court of the Magistrate Magistrate on the 24th January 1918 in which on lady purports to relinquish her claim for maintenance. The order upon hate was that it should be filed with the record It further appears that the lady left her has 1919 sue made a further aonlieatimi to the Magistrate for the arrears of maintenance for one year in the 12 th April 1919, bith parties petition in which ttey agreed that the present petitioner show pay His the Rs. 10 a month as long as she rema??? father. The pgitao, ends thus: “We beg to ask the Hunble Court to pass a decree???ned term ??? month for maintenance.” On this pet-ton also the order of the Court was that itshould befiled. Then, again on the 7th January 1921, the lady made a further application to the Magistrate for payment of arrears of maintenance the amount of Rs. 346 and on to 438 of the Code was made for the lew of the There the Sessions Judge of Burdwan was invited by the Die-seat petitioner tomake a reference to this Court with the rest-It that this Court remanded the case to the Sub-Deputy Magistrate wichh certain directions, namely that proper enquiries should be made on the four points set out, and that the case should be disposed of on that footing. The four points were, first, whether by the return of the wife to the husband's house towards the close of the year 1918 the oruer of the 14th September 1915, became inoperative; secondly, whether by reason of the arrangement made ia the beginnng of the year 1919, the order of the 14th September 1915 was superseded; thirdly, whether if the order of the 14 tr September 1915 is still in force should now be cancelled under the provisions of section 488, subsection (5) and fourthly, what amount is due to the wife if the order of tie 14tb Saptember 1915 is not inoperative and has not bean srpersesded or cancelled. On receipt of these direction and the Sub-Deputy Magistrate proceeded to take evidence and arrived at a finding, on the 17th August 1921, to the effect that a sum of Rs. 346-13 was due by the husband to the wife. Thereupon the present petitioner again moved the Sessions Judge of Burdwan to make a reference to this Court. The learned Sessions Judge, before otherwise dealing with the matter, remanded the case to the Sub-Deputy Magistrate in order that he might come to more explicit findings on the four points set out in the judgment of this Court. The Sub-Deputy Magistrate recorded such findings on the 20th December, but their effect was not to modify in any way the order which he had already raade. Thereupon the Sessions Judge of Burdwan has referred the whole case to us with the recommendation that the order oi the Sab-Deputy Magistrate should be set aside.
2. The matter for decision in this reference is, it appears to me, whether the decisions of the Magistrate on tne four points are or are not correct. As regards the first point, namely, whether the order of the 14th September 1915, became inoperative by reason of the woman's having returned to live with her husband towards the end of the year 1918 it appears to me that the view taken by the Sub-Deputy Magistrate is correct. A mere temporary stay of this kind, though it may have srspended the operation of the order, had not the effect of cancelling it in the way in which it could be cancelled under section 488(5) of the Code. Moreover, the Magistrate found that the petition to which I have referred and which was filed by the lady on the 24th January 1919, was obtained by fraud. It is obvious that such a petition could not have the effect of cancelling the order dated the 14th September 1918.
3. The second point is of greater importance, namely, whether by reason of agreement maue in the beginning of the year 1919, the order of the 14th September 1915, was superseded. It appears to me that when the petition of compromise was filed in the Court of the Sub-Deputy_ Magistrate, the parties had the intention of effecting a complete settlement of all questions outstanding between them; and it further seems to me that if there had been any intention of excluding the arrears of maintenance from the operation of the petition of compromise this would have been expressly mentioned therein. In my view, the decision of the learned Magistrate on the second point is correct and the intention of the parties, when they filed their petition, was, that the lady should abacdon her claim to any arrears of maintenance which may have accrued due up to that date.
4. I think that the Sub-Deputy Magistrate has rightly decided the third point. It has been urged that the petitioner had not proper opportunity to place his case before the Corrt. But I am satisfied that he wilfully abstained from appearing when he had notice of the proceedings, and that this is not a just ground for disturbing the Magistrate's finding. It is certainly not proved that Parul Bala has been guilty of any irregular conduct and, having regard to the treatment she has bad in the past, she has ample reason, as things at present are, for refusing to live in her Husband's bouse. There isno ground, therefore, for cancellation under section 488(5) of the order of the 14th September 1915.
5. In this view of the case, it becomes unnecessary for this Court, to consider the fourth point which was referred to the Magistrate.
6. In the result, the reference of the learned Sessions Judge should be accepted only so far as it relates to the arrears of maintenance anterior to the 12th April 1919; as regards the arrears of maintenance subsequent to that date, the order of the learned Sub-Deputy Magistrate should be affirmed. It will be necessary in this view to return the case to the Sub-Deputy Magistrate in order that te may calculate, on this footing, the amount of arrears of maintenarce due by the petitioner to his whe.
7. The order of the Sub-Deputy Magistrate as regards costs, will stand. We make no further order as to costs.
8. Refrence partly aceepted.