JUDGMENT

Kisch, J - This is a reference made by the learned Sessions Judge of Lucknow arising out of an order of maintenance made by the City Magistrate of Lucknow under Section 488, Criminal P.C. One Mrs. Lee made the application for maintenance against her husband Mr. Lee, an employee in the Bast Indian Railway on 12th October 1926, praying for mainten-ance for herself and her three daughters whose ages on the date of the application were seven, four and two years respectively. She alleged that her husband had deserted her since March 1925 and had given her scarcely anything for her maintenance and that of her children. At that time Mr. Lee was receiving a salary of Rs. 250 a month. On notice being served on Mr. Lee he appeared in the Magistrate's Court and came to an agreement in Court with the applicant under the terms of which he was to pay her Us. 60 per mensem. This agreement which is dated 26th November 1926 was attested both by Mr. and Mrs. Lee before the Magistrate on which the Magistrate made the following order:

I make an order under Section 488, Criminal P.C., and in terms of this compromise to the effect that Mr. Lee would pay Rs. 60 a month as maintenance allowance to his wife with effect from the date on which he gets his next pay and shall continue to do so every month through this Court till ordered otherwise."

2. The Magistrates's order was signed by both parties, Mr. Lee having noted in his own hand that he signed it "in token of notification." On 28th March 1927, on the application of Mrs. Lee and on the basis of the agreement referred to above, the maintenance allowance was raised by the same Court from Rs. 60 to Rs. 100 per month. On 20th February 1929 on the application of Mrs. Lee the allowance was further raised by the same Court from Rs. 100 to Rs. 125 per month. On 30th June 1931 on a further application by Mrs. Lee the allowance was once more raised by the same Court under Section 489, Criminal P.C., from Rs. 125 to Rs, 175 per month. Until the last mentioned application Mr. Lee appears to have acquiesced in the orders passed by the Magistrate from time to time, but when the Magistrate increased the allowance to Rs. 175 per month, he applied in revision to the Sessions Judge of Lucknow. In his application in revision he challenged the order of the Magistrate dated 30th June 1931 increasing the allowance from Rs. 125 to Rs. 175 per month having been made without jurisdiction and not in accordance with law. His application did not specifically refer to any previous orders in the maintenance proceedings. The case however appears to have been argued before the learned Sessions Judge on the footing that the maintenance order passed by the City Magistrate, Lucknow, on 26th November 1926 was void ab initio on the ground that when a compromise has been entered into between the parties to a case under Section 488, Criminal P.C., under the terms of which the husband undertakes to pay maintenance to his wife, there remains no refusal to maintain his wife on the part of the husband and therefore Section 488 has no longer any application. This contention found favour with the learned Sessions Judge who considers that in the circumstances the Magistrate had no jurisdiction to make an order of maintenance and therefore his proceedings were void under Section 530 (n), Criminal P.C., and should be set aside. He accordingly referred the case to this Court with a recommendation that the orders of the City Magistrate should be declared to be unenforceable.

3. The learned Sessions Judge has mainly relied in support of the view taken by him on the rulings in two Lahore cases, namely Budhu Ram v. Khem Devi, A.I.R. 1926 Lah. 469, and Sham Singh v. Mt. Hakam Devi, A.I.R. 1930 Lah. 524. It is true that these cases do prima facie appear to lay down the proposition that where once a compromise is entered into for maintenance there is no refusal to maintain on the part of the husband and therefore Section 488 has no longer any