Law: Criminal Procedure Code (V of 1898)

Section: 488

Law: Criminal Procedure Code (V of 1898)

Section: 488

Criminal Procedure Code (V of 1898)---- ----S. 488-jurisdiction of Magistrate not ousted by agreement between husband and wife providing for a maintenance allowance. An agreement executed by the husband in favour of his wife providing a maintenance allowance does not debar the wife from applying under section 488 of the Code of Criminal Procedure and the statutory right guaranteed by the law can not be denied to her merely on that score, provided she is able to satisfy the conditions laid down in the section. Saraswati Debi v. Narayan Das Chatterjee A I R 1932 Cal. 698 and In re Taralakshmi Manuprasad A I R 1938 Born. 499 ref. (REPORT OF ADDITTONAL SESSIONS JUDGE) The facts of this case are as follows :- Mst. Mumtaz Begum was at first married to Hafiz Bashir and bore him two children, who are alive. She was later divorced and married Muhammad Amin, Petitioner. This was not his first marriage. He executed an agreement to pay maintenance to the woman at the rate of Rs. 27 p. m. In spite of this agreement she applied for maintenance under section 488, Criminal P. C., for herself and for her child. In the meantime, the husband instituted a suit for restitution of conjugal rights. Probably in view of this civil litigation, the application for maintenance took very long and was decided as late as 29th December 1955. The wife's maintenance was fixed at Rs. 50 but no order was made regarding the daughter. The husband has applied for recommending revision against this order. The proceedings are forwarded for revision on the follow­ing grounds :- (1) In view of express agreement between the parties that the wife will be entitled to claim maintenance at the rate of Rs. 27 per mensem she had do right to apply under section 488, Criminal P. C. (2) The learned Magistrate did not advance any reason for fixing maintenance at the rate of Rs. 50 instead of stipulated amount. (3) No definite finding about the husband's monthly income was given, though evidence was produced by the parties. Without that finding, maintenance should not have been fixed at an apparently high rate. (4) The woman was divorced by another man before she married the petitioner and the parties come from…

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