A Magistrate cannot dispose of an application for maintenance under Section 125 of the Cr. P. C. or an application for the enforcement of an order made thereunder, in accordance with a compromise arrived at between the parties. However, the concerned party can set up the compromise as providing sufficient cause for not complying with the order made under Section 125(1). The Magistrate has to investigate whether the cause set up exists or not, and if the compromise relied upon has been arrived at by practicing fraud or misrepresentation, it cannot provide sufficient cause for not paying the maintenance.

( 1 ) SMT. Changi has filed this application under Section 438 of the Cri. P. C. praying that the order of the Sub-divisional Magistrate, Bindki dated 22nd July, 1974. and the revisional order passed by the Additional District and Sessions Judge, Fatehpur dated 4th May, 1970 be quashed.

( 2 ) SMT. Changi moved an application under Section 488 Cr. P. C. claiming maintenance for herself and her minor daughter. That application was allowed by an order dated 8th December, 1909. Revision application filed against the order was also dismissed on 4th May, 1970. The applicant then moved an application for enforcement of the order granting maintenance to her and to her daughter. During the course of enforcement proceedings, it is said, a compromise petition was filed on 22nd July, 1974 and on the same date, the learned Magistrate made an order stating that the case was decided in terms of compromise and that the compromise shall form part of his order. Subsequently, the applicant moved an application dated 5th August, 1974, alleging that the said order accepting compromise be set aside as it was based on fraud and misrepresentation. The learned Magistrate, however, by his order dated 14th July, 1975, declined to recall his earlier order dated 22nd July, 1974. Being aggrieved, the applicant went up in revision before the learned Sessions Judge, Fatehpur.

( 3 ) BEFORE the Sessions Judge, the opposite party took the preliminary objection with regard to the maintainability of the revision. The Sessions Judge, however, repelled that objection and proceeded to decide the revision application on merits. He came to. the conclusion that it was competent for the Magistrate to record the compromise arrived at between the parties and to dispose of the case in accordance with it He, however, declined to go into the question as to whether the compromise had been arrived at by practising fraud and misrepresentation and held that it was not open to the revisional court to go into that question. According to him, the applicant could file a civil suit for getting of the compromise arrived at between the parties, declared as invalid. So long as the compromise stood, no exception could be taken to the order of the Magistrate recalling his earlier order datel 22nd July, 1974. In the result, he dismissed the revision application. The applicant has now come up before this Court.

( 4 ) FIRST point raised on behalf of the applicant is that neither under Section 488 of the old Code of Criminal Procedure nor under the corresponding Section 125 of the new Code of Criminal Procedure, is there any provision for deciding an application made under that section on the basis of a compromise arrived at between the parties. The learned Magistrate, accordingly acted without jurisdiction in recording the compromise said to have been arrived at between the parties and in deciding the proceedings on its basis.

( 5 ) SUB-SECTION (1) of Section 125 lays down the circumstances in which the person who has failed to maintain his wife or minor child can be directed to pay maintenance. Sub-section (3) thereof, then provides that in a case where the person directed to pay maintenance fails to pay it the amount of maintenance can be recovered at the instance of wife or the minor child in the manner provided therein. Sub-section (4) lays down the circumstance in which a wife becomes disentitled to receive maintenance and Sub-section (5) provides for cancellation of an order for payment of maintenance already made. The scheme underlying the section indicates that so long as the order directing payment of maintenance under Sub-section (1) stands or the conditions mentioned in Sub-section (4) disentitling a wife to receive the same, do not come to exist, it has to be enforced at the instance of the persons entitled to receive the same, in the manner provided in Sub-section (3) of Section 125. There is no provision in Section 125 like that contained in 0. 23 of the C. P. C.