JUDGMENT

Kisch, J - The opposite party, Mrs. Birch, made an application against her husband under Section 488, Criminal P.C., for an order of maintenance for herself and her four children. At the hearing she withdrew her claim for maintenance for herself and pressed it only with regard to the four children. The husband stated that he was willing to pay for the maintenance and education of the children, two boys and two girls, provided they were sent to the La Martiniere Schools. This was assented to by Mrs. Birch. An order was accordingly passed by the Magistrate that Mr. Birch should pay Rs. 50 per month to Mrs. Birch for the maintenance and education of the four children and that Mrs. Birch should get the children admitted into-the La Martiniere Schools. Mr. Birch paid the maintenance for one month and then stopped payment. On Mrs. Birch taking out execution Mr. Birch raised the objection that he had stopped the payment of the maintenance allowance because the children had not been sent to the La Martiniere Schools. Thereupon Mrs. Birch withdrew her application for execution and applied to the District Magistrate in revision that the case should be referred to this Court for the cancellation of the condition that the children should be sent to the La Martiniere Schools as the amount awarded for their maintenance was insufficient even for the support of the children.

2. The learned District Magistrate did not consider it necessary to report the case to this Court as he held that the order that the children should be sent to the schools was not a condition on the strength of which the maintenance order depended but the two orders were independent. He pointed out that the order about the schools was not one that the Court could enforce, and there was nothing to prevent the applicant asking for execution of the maintenance order. Mr. Birch has applied in revision to this Court against this order of the District Magistrate. The first contention put forward by the learned Counsel for the applicant is that the District Magistrate's order was without jurisdiction and all he could have done was to have reported the case to this Court under

3. Section 438, Criminal P.C. In the circum-stances of the case I doubt whether it was really necessary for the District Magistrate to report the case to this Court, but in any case the objection is a technical one. The case is now before this Court and can be decided on the merits.

4. It has been contended by the learned Counsel for Mr. Birch that the order for maintenance must be regarded as an order based on a compromise arrived at between the parties the conditions of which are embodied in the order of the Court and that the order was void on the ground that Section 488, Criminal P.C., has no application when a compromise is made between the parties, the proper remedy of the wife being to sue in a civil Court to enforce the terms of the compromise. The same argument was raised before me in another case under

5. Section 488, Criminal P.C., AIR 1933 Oudh 119 in which this Court held such a contention to be unfounded. In the present case it is even doubtful whether it can be held that the order for maintenance was passed on a compromise. It appears to me that the order merely embodies an expression of wish by the husband that part of the money should be expended on sending the children to the schools specified, but where the maintenance awarded is scarcely sufficient for the bare necessities of the children, this portion of the order of the trial Court could not be held to have any binding effect.

6. It is next contended that the fact that Mrs. Birch has not sent the children to the La Martiniere Schools was a "sufficient cause" for the failure of Mr. Birch to comply with the order of maintenance within the meaning of Sub-section 3, Section 488, Criminal P.C. I find it impossible to accept this contention. The ages of the four children range from nine to seventeen. Two are sons and two are daughte