An agreement between the parties does not bar the wife from seeking maintenance under Section 488 Cr.P.C.

G. S. Lal, J. :- The facts of the case giving rise to this revision are that on the application of the opposite party Smt. Vidya Debi under Section 488 Cr.P.C. the learned Magistrate passed an order for allowing her maintenance at the rate of Rs. 40/- per month against the applicant Ram Lotan Singh, husband of the opposite party. The revision filed by Ram Lotan Singh was dismissed by the Session Judge of Hardoi. It appears from the order of the learned Magistrate which give the facts, that in 1961 the parties were married according to the Hindu Law and lived as husband and wife but the applicant began to maltreat the opposite party and this was alleged to be because he had contracted illicit relationship with another lady and this was objected to by the opposite party. In 1967 there was a panchayat and before the panchayat Ram Lotan Singh entered in to an agreement with his wife. According to the learned counsel for the applicant, the agreement was that Ram Lotan Singh would properly maintain his wife and that in case he again maltreated her he would be liable to pay maintenance to her at the rate of Rs. 40/- per month. In the application under Section 488 which was made in August, 1970 the opposite party alleged that after two months of the compromise the applicant again began to beat and maltreat her and to go to the woman with whom he had illicit connection and that he had also turned her out after beating. The opposite party then began to live with her father. The learned Magistrate held that there had been maltreatment and Sm. Vidya Debi Was entitled to maintenance. After considering the relevant fact he held that a sum of Rs. 40/- per month should be paid by Ram Lotan Singh to his wife Smt. Vidya Devi. The learned sessions Judge also considered the contentions raised on behalf of Ram Lotan Singh before him but agreed with the order of the learned Magistrate.

2. In the revision under consideration learned counsel for the applicant-revisionist has argued that the Court be low have committed an error of law in the awarding of maintenance allowance under Section 488 when there existed an agreement between the parties under which Smt. Vidya Debi was to receive maintenance at Rs. 40/- per month in case of maltreatment again. According to the learned counsel the criminal Court had no jurisdiction under Section 488 Cr.P.C. to award maintenance in the face of the existence of an agreement. In support of this argument learned counsel has cited a decision of the Lahore High Court in Budhu Ram v. Khem Devi (AIR 1926 Lah 469). There an application had been made by the wife under Section 488 Cr.P.C. for maintenance. A compromise was entered into by which the husband agreed into by which the husband agreed to pay Rs. 12/- per mensem. This agreement was recorded by the order of the Magistrate. The wife then applied to recover the arrears alleged to the due under the said order and the Additional District magistrate ordered warrants of attachment to issue for the arrears of maintenance. The husband then applied for revision basing his contention two rulings of the Chief Court which noted also another Division Bench Ruling which appeared to be on all fours with the case in the revision before the Lahore High Court. The very short judgement in the case simply states that once a compromise was entered into to pay maintenance there was no refusal to maintenance there was no refusal to maintain on the part of the husband and therefore Section 488 has no longer application. An order for issue of attachment regarding such a compromise was held to have been passed without jurisdiction under that section. It was also observed that the wife had her remedy by way of a civil suit on the compromise she entered into. The revision was allowed.

3. Firstly, I do not see how this decision is applicable to the the facts of this case. There a proceeding had been initiated under Section 488 and it was in the course of that proceeding that a compromise