Smt. Mukhtiari vs Gugan And Another
1997 Latest Caselaw 599 Del

ORDER

1. Marriage, it is said, is like twirling a baton, or turning hard springs or eating with chopsticks. It looks easy until one tries it. The parties to the petition tried many decades back and failed. Now in their seventies, they are fighting in Court over their failures.

2. More than a decade ago, finding that her husband, the respondent before me, was not even providing for her maintenance, the petitioner moved a petition under Sec. 125 of the Code of Criminal Procedure. However, on September 19, 1984, the parties arrived at a compromise with regard to the demands of the petitioner and moved a joint petition before the Metropolitan Magistrate containing the terms of settlement. It ran as under :

"The applicant respectfully submits as under :

That in the above noted case the parties have compromised out of their sweet will without any force coercion to the following effect.

1. That the respondent husband Gagan has given complete accommodation to the petitioner situated in his house on the first floor of his house in village Bakhatwarpur, Delhi. She will enjoy the above accommodation exclusively without any interference.

2. That the respondent will give Rs. 800/- per annum to the applicant and out of this amount Rs. 400/- is being paid before the Court today on the date of compromise.

3. That the respondent has agreed that he will give 8 (eight) mound of wheat per year to the applicant.

4. That the respondent will give 1/2 Kg. milk daily to the applicant if milk is available in the house. She will reside and cook her meal in the above said house.

That in view of the above mentioned compromise the petition of the petitioner be decided.

It is therefore prayed that the above compromise be accepted and the case be decided accordingly.

Delhi/Dt. 19-9-1984

Petitioner/Applicant RTI of Smt. Mukhtiari

Respondent LTI of Gaggan."

Consequent upon the settlement the Metropolitan Magistrate, on September 26, 1984 disposed of the petition under Sec. 125 with the following order :

"Present : Parties in person.

Rs. 400/- paid to pet.

As per compromise recorded on 19-9-84. The petition stands compromised and is dismissed as compounded. File be consigned to record room.

Sd/-       

M. M. Delhi 26-9-84"

3. In August, 1993 the petitioner applied under Section 127 of the Code for modification of the terms of compromise. She prayed for an order granting maintenance at the rate of Rs. 500/- per month. The husband, as would have been expected of him, contested the petition. The plea taken was that the petition under section 125 having been dismissed and there being no order of maintenance, there could be no order under Section 127. The learned Metropolitan Magistrate, though good enough to record the objection, allowed the petition and fixed maintenance at Rs. 500/- per month, but without, in any way, dealing with the objection.

4. Aggrieved by the order of the Metropolitan Magistrate the husband went in revision. Number of objections were taken to the order. However, the main objection raised was that the petition under section 125 having been dismissed by the learned Metropolitan Magistrate, the petition under section 127 did not lie and consequently, the impugned order could not be passed. And, the learned Additional Sessions Judge by his order of January 16, 1996 allowed the revision petition, set aside the impugned order and directed the parties to appear before the trial Magistrate. The reason advanced for acceptance of the revision petition was :

"When there is no order under section 125 of the Criminal Procedure Code passed by the trial court at all, under these circumstances the question of enhancement of the same under section 127 of the Criminal Procedure Code does not arise."

It was then the turn of the wife to feel aggrieved. Hence this petition.

5. There was nothing new in the arguments advanced. Whereas, the learned counsel for the petitioner felt that the order passed under section 125 deserved to be read as one allowing the petition and granting maintenance in terms of the settlement arrived at between the parties, the learned counsel for the respondent saw absolutely no justification for adopting that course. He felt that since the petition under section 125 stood dismissed by the learned Metropolitan Magistrate, there was no scope for looking out for something which wasn't there at all. Thus concluded the arguments consuming not more than four minutes leaving me, for once, wishing they had lent some more assistance.

6. Let us refresh our memory. The application containing terms of settlement was moved by the parties jointly. The terms of settlement were clearly delineated. That is not all. Let us recall the last two paragraphs of the application. They were :

"That in view of the above mentioned compromise the petition of the petitioner be decided.

It is therefore, prayed that the above compromise be accepted and the case be decided accordingly."

7. As would be borne out from the two passages extracted above, the parties desired the court not to dismiss the petition but to accept the terms of settlement and to decide the petition in terms thereof. It is not that when the learned Metropolitan Magistrate passed the order she was not aware of the compromise arrived at between the parties. In fact she specifically made reference to it in her order of September 26, 1984 and yet she passed the order that :

"The petition stands compromised and is dismissed as compounded."

8. How could the petition be dismissed when there was no such request ? More so when the joint prayer was that the petition be decided in terms of the settlement ? The fact, however, remains that the order of dismissal is there to stare at us and to mock at the petitioner. Can something be done in such a situation ?

9. Though, as noticed above, the learned counsel for the parties felt contented in winding up their submissions in a matter of few minutes without making reference to any authority, I find, to my great relief, that the question posed is not unprecedented. Long time back it arose before a Division Bench of the Calcutta High Court in Debjani v. Rasik Lal . It related to a petition under section 488 of the Code of Criminal Procedure 1898 (Section 125 under the Code of 1973). In the said case too a petition of compromise fixing the maintenance allowance was filed by both the parties. The prayer made was :

"It is, therefore, most respectfully prayed that an order be made against the defendant and in favour of the petitioner Smt. Debjani Biswas and her children in accordance with the above terms."

The learned Magistrate instead of passing an order in terms of the settlement, proceeded to pass the following order :

"Case amicably settled, petition of compromise filed. Rule discharged."

As the husband did not adhere to the terms of settlement, the wife applied to the court for enforcement of those terms of settlement. The question which arose before the High Court was as to whether the terms of the settlement could really be acted upon. The Division Bench held :

"In my view this matter was quite clear and there would have been no difficulty whatever about it, had the Magistrate who dealt with it originally not been quite so cursory in his recording of the case. On 23rd February, 1940, when the terms of settlement were put in and ordered to be filed, the Magistrate ought to have made an order to put the matter beyond doubt and he could have done so in these words : "Petition of compromise filed, order in terms of compromise." That would have meant that there was an order for the payment of the money in the terms of the petition of compromise. That would have put the matter beyond all question and such a course will be the proper procedure in future for a Magistrate to adopt in cases of this kind. ........."

The court then finally acted on the compromise. And, before I conclude my discussion of the Calcutta judgment, I may mention that though the main judgment was by Derbyshire C.J., Barkley, J. who concurred, summarised the legal position most succinctly in the following few words :

"I agree. I would only add that in my opinion an order lawfully made by a Magistrate under section 488, Criminal Procedure Code, whether on compromise or otherwise, must be deemed to be enforceable in the manner provided by sub-section (3) of section 488."

10. Should I then pass an order similar to the one passed in the Calcutta Case ? I am afraid I cannot. Not because I am not in agreement with the view taken therein. The truth is that, with respect, I find myself totally attuned to the reasoning adopted and the view taken. The difficulty lies somewhere else and unfortunately, during arguments, my attention was not drawn to it even obliquely. It seems the learned counsel for the parties were not even conscious of it. The difficulty to which I am presently addressing myself arises out of the terms of the compromise.

11. As would be apparent on even a cursory look at the terms of the compromise, it envisages payment of Rs. 800/- per annum besides making a provision for supply of eight mounds of wheat per year and daily allowance of milk. Could the Magistrate pass an order under sec. 125 in terms of the said agreement ? The answer to the question lies within the embryo of section 125 of the Code. The section empowers the Magistrate to order only "a monthly allowance" and that too "not exceeding five hundred rupees in the whole." This being the position, an order directing annual payment would be illegal. Similarly an order allowing maintenance partly in cash and partly in kind would also be illegal. Reference in support may be made to Annapurna Devi v. Satrughna, : Purnasashi Devi v. Nagendra Nath, ; Mukta v. Dattu Mahadev, AIR 1924 Bom 332 : (1924 (25) Cri LJ 965) and Kaluram v. Emperor, AIR 1932 Nag 183.

12. As if all that has been noticed above was not enough, the settlement also provides for a house for residence of the petitioner. An order putting a seal of approval on such a term would have been illegal and in support I seek to draw force from Shankergar v. Bhachibai, AIR 1953 Kutch 21 : (1953 Cri LJ 727) and Mt. Roshan Bano v. Azim, AIR 1943 Lahore 59 : (1943 (44) Cri LJ 425).

13. What does all this mean ? Where does all this lead us to ? To my mind, what emerges out from the above discussion is that where on the terms of a settlement an order can lawfully be made the Magistrate, unless there is a specific request for dismissal of the petition, should pass an order in terms thereof. But where an order cannot be made lawfully on the basis of the settlement arrived at, the Magistrate must decline to act on it and proceed to decide the petition in accordance with law. The Magistrate cannot dismiss the petition merely on the ground that an order cannot be lawfully made on the basis of the compromise arrived at between the parties unless, of course, and as noticed above, the petitioner chooses to withdraw the petition and asks for its dismissal.

14. In the case in hand too as the learned Metropolitan Magistrate could not have lawfully made an order under sec. 125 on the basis of the terms of the compromise, she ought to have proceeded to decide the petition on merits in accordance with law. This was incumbent upon her since there was no request to dismiss the petition. The position thus boils down to this : (a) The order dismissing the petition was bad. (b) Since, on the basis of the terms of the settlement, the Metropolitan Magistrate could not lawfully make an order under section 125, the view taken by the Calcutta High Court in the case referred to above, would not apply and consequently the order dismissing the petition on account of the settlement cannot be read as an order in terms of the petition of compromise. And, if I am correct in my assessment of the legal position then surely no petition could lie under sec. 127 of the Code of Criminal Procedure for the simple reason that neither the petitioner was receiving any monthly allowance under sec. 125 of the Code nor was there any order for payment of any monthly allowance under that provision. This being the position, the order passed by the learned Additional Sessions Judge dismissing the revision petition needs to be confirmed though for the reasons delineated above.

15. Should I then proceed to drop the curtain ? No, not yet, for I feel it is not the time for adieus. A larger issue still remains. What about the fate of the petition under section 125 of the Code which was illegally dismissed ? Should I not say something about it ? Since I feet that the order dismissing the petition under section 125 was bad in law should I not, while dealing with this petition which though admittedly challenges merely an order of dismissal of the petition under section 127, pass an order on the life-span of the petition under section 125 ? Should I be a bland figure-head in the adversary scheme of things viewing the case from, what Judge Marvin Frankel (Frankel, The Search for Truth. An Imperial view, 123 U.PA.L. Rev. 1031, 1042 (1975)) calls "a peak of Olympian ignorance" or should I roll up my sleeves and, in the words of William W. Shwarzer, (William W. Shwarzer, Managing Antitrust and other Complex Litigation. A Hand-Book for Lawyers and Judges, 1982) "dig into the case" and act as a catalyst, a guide, a facilitator "to strip the case of its essentials" ? The law seeks fair dealing, equity and redress of grievance for, these are the benefits of legal system. And, if that be the driving force, why should I not allow the petitioner to take yet another bite at the apple ? What for is the inherent jurisdiction vested in a superior court if it is not to "uphold, to protect and to fulfill the judicial function of administering justice according to law in a regular, orderly and effective manner ?" (Sir Jack I. H. Jacob : The Inherent Jurisdiction of the Court" (1970) C.L.P. p. 23, reprinted in Jacob, The Reform of Civil Procedural law (1982) at p. 224) Here is a case where the petition was illegally dismissed by the Court. Why should the petitioner suffer on that account ? The least I can do is to restore the petition and direct the learned Metropolitan Magistrate to proceed to decide it in accordance with law, and this is precisely the order which I hereby make. Let the parties appear before the learned Metropolitan Magistrate on 28th July, 1997. The record be sent back forthwith.

16. Order accordingly.