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1. This provisional application is directed against the Judgment and order date 25.2.99 passed by the learned additional District & Sessions Judge at Katwa, District Burdwan, in Criminal Motion No. 34 of 1998 in connection with the order dated 12.2.98 passed by the learned Sub-divisional Judicial Magistrate, Katwa in Misc. Execution Case No. 22 of 1996.

2. The petitioner Manoka Chatterjee was married to O.P. No. 1 Swapan Chatterjee. The O.P.--husband started torturing the petitioner-wife and had driven her out of his house for which she was compelled to stay in her parental house. The petitioner had no means to maintain herself and had, therefore, brought the case for maintenance under Section 125 Cr.PC against the husband. She was ordered to pay Rs. 200/- per month for her maintenance by the learned S.D.J.M., Katwa by his order dated 17.11.87. In pursuance of that the petitioner-wife filing an application under Section 128 Cr. PC, obtained an order by the learned S.D.J.M., Katwa for payment of Rs. 2,400/- by the husband. By order dated 12.2.98 the learned S.D.J.M., Katwa ordered all payments of maintenance to be made to the wife by the husband. That order of the learned Magistrate was assailed by the O.P. husband and the learned Additional District & Sessions Judge in Criminal Motion No. 34 of 1998 passed the impugned order dated 25.2.99 whereby he allowed the said criminal motion and set aside the order of the learned S.D.J.M., Katwa in Misc. Execution Case No. 22 of 1996. On the grounds that the petitioner-wife had already filed a compromise petition with her husband before the Civil Court in connection with a Mat. Suit under Section 13 of the Hindu Marriage Act and that since the said compromise petition was allowed on payment of Rs. 62,000/- for future maintenance of the wife, Manoka Chatterjee, no further claim could be made by her.

3. The wife, that is the petitioner, Manoka Chatterjee, started a case for maintenance under Section 125 Cr.PC against her husband, Swapan Chatterjee, O.P. No. 1. She was granted maintenance @ Rs. 200/- per month by the learned Magistrate. Direction was also given in the execution case for payment of Rs. 2,400/- by the husband to the wife. Being aggrieved, the husband preferred a criminal motion before the learned additional District & Sessions Judge, Katwa before whom the point for consideration was whether the learned Magistrate erred in allowing the petition under Section 128 Cr.PC by wife, Manoka directing the husband, Swapan to pay the arrear maintenances prayed for. By his impugned judgment dated 25.2.99 the learned Additional District & Sessions Judge, Katwa allowed the criminal motion on contest and had set aside the order of the learned Magistrate. The only point for determination before us is whether the learned additional District & Sessions Judge, Katwa was justified in allowing the said criminal motion and thereby dismissing the wife Manoka Chatterjee's claim for maintenance.

4. I have gone through the judgments and orders passed by the learned Sub-Divisional Judicial Magistrate and the learned additional District & Sessions Judge, Katwa.

5. The focal point of controversy before the learned Courts below was whether the wife, despite having entered into a mutual agreement with her husband whereby on consent of parties, she was to receive a sum of Rs. 62,000/- as future maintenance and to withdraw all cases pending in different Courts and whereby the marriage was dissolved by a decree of divorce by mutual consent, was debarred from claiming any maintenance allowance which was payable in accordance with the orders passed in connection with the previous maintenance case under Section 125 Cr. PC by the wife against the husband.

6. The learned Sub-Divisional Judicial Magistrate, Katwa appears to have relied upon case laws reported in (1986) I DMC page 129 which was to say that receiving a lump-sum maintenance on divorce was not tantamount to surrendering right to get maintenance under Section 125 Cr. PC and another case reported in (1987) Cr. LJ page 765 which was to say that if there was any agreement for foregoing right of maintenance, such agreement was against public policy and was hit by Section 23 of Cr.PC Act and that this agreement could not be enforced. The learned Magistrate, therefore, found that the O.P. husband could not escape from the liability to make the payment of maintenance.