JUDGMENT

P. K. MOHANTY, J. — This is an appeal against the order of the learned Judge, Family Court, Rourkela passed in a petition filed under Sec. 128 of the Code of Criminal Procedure, directing en¬forcement of an order of maintenance in favour of the respondent-wife passed under Sec. 125, Cr.P.C.

2. The short facts of the case is that an order under Sec. 125, Cr.P.C. was passed in Misc. Case No. 79 of 1991 against the appellant on 8.8.1991 directing him to pay monthly maintenance of Rs. 250/- with effect from 25.5.1989. The appellant-husband having not complied with the order and having defaulted in payment, the respondent filed an application under Sec. 128, Cr.P.C. for enforcement of the order of maintenance. The appel¬lant appeared before the learned Judge, Family Court and filed his show cause denying his liability on several grounds. In course of the proceeding, a reconciliation was attempted and the appellant and the respondent filed a joint petition on 10.1.1992 to the effect that the appellant would pay a sum of Rs. 200/- out of Rs. 500/- in the first instalment on 23.1.1992 and on payment of the said amount, the respondent would go to the house of her husband for resuming conjugal life. On 23.1.1992, the appellant deposited a sum of Rs. 1200/-, but the respondent expressed her displeasure and unwillingness to resume the conjugal life. Howev¬er, another application was filed signed by both the parties to live together, and the respondent would go with her husband after receiving some amount. However, the petitions of compromise dated 10.1.1992 and 23.1.1992 were directed to come on 12.2.1992. The parties appeared on 12.2.1992 and it is said that they went to the house of the appellant to resume their conjugal life.

3. However, on 17.2.1992, the respondent appeared before the learned Judge, Family Court and filed a petition alleging therein that though she had gone to the house of the appellant in conso¬nance with the compromise, but she was assaulted by the inmates as well as by the appellant for which she has left the matrimoni¬al home and a prayer was made for not acting upon the joint peti¬tions purportedly made on 10.1.1992 and 23.1.1992. On considera¬tion of the petition and the materials on record, the learned Judge, Family Court rejected the petition filed on 10.1.1992 and 23.1.1992 and directed enforcement of the order of maintenance passed under Sec. 125, Cr.P.C. The appellant is aggrieved by the said order.

4. It is contended by Sri Samantray, learned counsel for the appellant that the learned Court below having allowed the parties to act upon the compromise and remain together, the subsequent order rejecting the application is unsustainable in law, inasmuch as he could not have directed enforcement of the order passed under Sec. 125 Cr.P.C. because of the compromise placed before the Court.

Mr. S. K. Nanda, learned counsel appearing on behalf of Mr. Pradip Mohanty, however, contends that since the order under Sec. 125, Cr.P.C. has neither been challenged nor an application for variation of the order has been filed, the learned Judge, Family Court could not have varied the said order in an application under Sec. 128, Cr.P.C. and has rightly directed enforcement of the order. In support of his contention, the learned counsel has referred to a decision of the apex Court in the case of Bhupinder Singh v. Daljit Kaur : AIR 1979 SC 442.

5. Thus, the short question that arises for consideration is as to whether in a proceeding instituted upon a petition under Sec. 128 Cr.P.C. the Judge, Family Court has the jurisdiction and power to vary/modify or regional the order of maintenance passed under Sec. 125 Cr.P.C. purportedly on the basis of the compromise entered into by the parties to resume conjugal life.

6. The apex Court in Bhupinder Singh v. Daljit Kaur : AIR 1979 Supreme Court 442 at paragraphs 7 and 8 thereof observed thus :

“7. We are concerned with a Code which is complete on the topic and any defence ag