N.H Bhatt, J.:— This is a revision application by the husband of the maintenance proceedings, which were initiated by the opponent-wife against this petitioner-husband. Now during the pendency of these proceedings, the husband had succeeded in getting a decree for restitution of conjugal rights, which would mean that the wife is under an obligation to go and stay with the husband. The right to claim maintenance from the husband ordinarily depends upon the readiness of the wife to fulfil the marital obligation under the roof of the husband. The learned Magistrate had rejected the wife's application on the ground that the husband having procured a decree for restitution of conjugal rights. The learned Addl. Sessions Judge in the wife's revision application disragreed with the trial Magistrate and granted the application and awarded Rs. 150/- p.m as the amount of maintenance from the date of the application, namely, 12-7-79. This has occasioned the present application by the husband.
2. The judgment of the Supreme Court in the case of Captanta Ramesh Chander Kaushal v. Mrs. Veena Kaushal, (1978) 4 SCC 70 : A.I.R 1978 S.C 1807 is a clear answer to this point. In paragraph 6 of the said reported judgment, Justice Krishna Iyer in his pithy and forceful expression has succinctly laid down the law as follows:
“Broadly stated and as an abstract proposition, it is valid to assert, as Shri Desai did, that a final determination of a civil right by a civil Court must prevail against like decision by a criminal court….”
3. Even if this be treated as an obiter observation, an obiter statement of the Supreme Court is the law of the land, under Article 141 of the Constitution of India.
4. Applying that ratio of the Supreme Court judgment to the present case, I find that the learned Additional Sessions Judge could not embark on an irrelevant enquiry of the nature undertaken by him in paragraph 6 of his judgment. The learned Judge thought that the wife was helpless because the husband had refused to pay alimony as ordered by the competent court of matrimonial jurisdiction and, therefore, the wife could not resist that suit for want of funds and ultimately the decree for restitution of conjugal rights was passed by the court on 24-6-81. The learned Judge's observation herein is a little astounding. He says that “simply because the respondent-husband could successfully play tricks in procuring a decree for restitution of conjugal rights without giving any opportunity to the petitioner-wife for resisting that suit, it does not give any weapons in hand to raise a defence against this petitioner for maintenance.” A decree of a civil court binds the parties. None can go behind the decree nor even the learned Additional Sessions Judge. If the wife was aggrieved by that decree, her remedy lay in knocking the doors of the appellate forum. She took that decree lying down.
5. She persisted in her allegation against the husband that the husband was impotent and, therefore, she was not prepared to go and stay with him. If there was anything to be stated regarding this particular defence of her, it was open to her to plead and prove the same in those proceedings initiated by the husband for restitution of congugal rights.
6. In above circumstances, the order of the learned Additional Sessions Judge flying in the face of the Order of the Civil forum determining the rights of the parties cannot be allowed to stand. When the civil court orders the wife to go and stay with her husband and fulfil her marital obligations, it presupposes that she has no justification to be away from the husband and refuse to perform her corresponding martital obligations. Unfortunately, the learned Judge was carried away by sentiments and that is why he allowed the wife's revision against the order of the learned Magistrate refusing to grant maintenance.
7. Mr. Karia urged that as the decree for restitution of conjugal rights remained unexecuted for a period of two years, the wife has already initiated the proceedings for procuring divorce. Till divorce is procured, the decree for restitution of conjugal rights stands. If any rights of maintenance flow from that new decree it will be a matter of fixture and not of the present.
8. The result is that the criminal revision application is allowed by quashing the order of the learned Additional Sessions Judge and restoring that of the learned Magistrate. Rule is accordingly made absolute.
9. Rule made absolute.