The Joint Magistrate has completely ignored in this case the provisions of section 489 (2) of the Criminal Procedure Code. On an application filed under this section it is the duty of the Court to consider whether a decision of the civil court leads to the consequence that the other passed by the criminal court under section 488 should be cancelled or varied. There is no question of his considering whether the decision of the civil court has altered the circumstances of the case as the Magistrate has found. For the purpose of Section 489 (2) the criminal court should take the decision as its stands and consider the necessary effect of it upon the order passed by the Criminal Court. If the consequence is that it should be varied or cancelled, effect must be given to it by cancelling the order or varying it accordingly. The discretion that is given in that subsection to the criminal court is only for this limited purpose. In this case the Magistrate has taken upon himself to completely ignore the decision of the civil court and has not chosen to consider whether in consequence of that decision his order should be cancelled or varied. That he was not competent to do.
The learned District Judge has found that the alleged adultery of the wife with Alphonso was not proved to be true by any cogent or reliable evidence and consequently he dismissed the suit that had been brought by the husband impleading her and the said Alphonso as the co respondent. The only consequence of this decision is that the order passed by the Magistrate in M.C No. 32 of 1944 cancelling the maintenance allowance that had been granted to the petitioner in the prior proceedings in M.C No. 13 of 1943 and 17 of 1944 should have no effect and the prior orders granting her maintenance should be restored.
The petition is allowed and the maintenance granted to the petitioner in M.C No. 13 of 1943 and 17 of 1944 will be restored. The restoration will take effect as from the date when she filed M.C No. 11 of 1946 in the court of the Joint Magistrate, Coonoor having regard to the principle contained in the proviso to section 488 (3) of the Code of Criminal Procedure.
N.T.RPetition allowed