1. Does a decree for restitution of conjugal rights obtained by the husband subsequent to an order for maintenance obtained by the wife under S. 488 Cr. P.C ipso facto cancel that order and deprives her to claim maintenance, is the meaningful question which requires determination in this revision petition?

2. The facts are short and not in dispute. The petitioner is the husband of respondent 1 and father of respondent 2. The parties were married as far back as in 1958 and six children were born out of the wedlock. Subsequently the relationship between the husband and wife became strained and according to the wife the cause of strained, relations was that the husband had kept mistress by the name Mato Devi and on that account had turned her out of the matrimonial house. On 14-8-1980, the wife filed an application for maintenance under S. 488, Cr. P.C claiming maintenance for herself and her minor daughter who was living with her. The application was resisted but after a full trial, the learned Munsiff Judicial Magistrate Ist Class, Hiranagar, allowed the application on 17-4-1982 granting maintenance at the rate of Rs. 150/- per month for the wife and the minor daughter living with her.

3. Aggrieved, the husband assailed the order of the learned trial Magistrate in the High Court through Criminal Revision Petition No. 46 of 1982 which was dismissed on 14-11-1985 and the order of maintenance was maintained. Despite the failure of the husband in the High Court the husband did not pay up either the monthly maintenance or the arrears of maintenance; which had accumulated. In Dec., 1985, the wife applied for enforcement of the order under sub-sec. (3) of S. 488 Cr. P.C before the learned trial Magistrate claiming arrears of the maintenance amount. In the meantime it appears the husband applied for restitution of conjugal rights under S. 9 of the Hindu Marriage Act on 12-12-1985. The husband succeeded in obtaining an ex parte decree of restitution of conjugal rights from the learned District Judge, Kathua, on 17-2-1986. The husband appeared before the learned Judicial Magistrate Ist Class, Hiranagar, on 7-3-1986 and the interim order shows, that he sought adjournment to liquidate the arrears of maintenance. He did not bring to the notice of the learned Magistrate that he had obtained any ex parte decree for restitution of conjugal rights which exposes the lack of bona fides on his part. The application was adjourned to 17-3-1986, when the husband instead of complying with the order, applied for the transfer of the recovery proceedings. On 7-6-1986, the transfer application was dismissed by the learned Chief Judicial Magistrate, Kathua. Following this, the husband appeared before the trial Court through his counsel and sought an adjournment to file objections. The objections were filed on 13-8-1986 wherein, for the first time, he disclosed about his having obtained a decree under S. 9 of the Hindu Marriage Act from the Court of District Judge, Kathua, and asserted that “In the light of the decree, the order of this Hon'ble court is not enforceable”. Certain other objections were also raised to the; petition by the husband. Vide order impugned in the revision petition the learned trial Magistrate, found that the husband had been playing hide and seek game with the courts and was trying to frustrate the operation of the order of maintenance and that the decree obtained by him (under S. 9 of the Hindu Marriage Act from the learned District Judge) was not bona fide as the object of obtaining the decree was only to frustrate the order of maintenance. The learned Magistrate, was satisfied that the object of the husband in obtaining a decree for restitution of conjugal rights was to get the order of maintenance cancelled and not to take his wife back and on being so satisfied he declined to cancel the order of maintenance.

4. Mr. G.N Goni, learned counsel for the petitioner has submitted that the decree passed by the Civil Court under S. 9 of the Hindu Marriage Act in favour of the husband superseded the order for maintenance of the wife and the order of the Criminal Court ceased to have any effect in so far as the husband is concerned. He argued that the decree for restitution of conjugal rights, ipso facto, puts an end to the right of maintenance. Mr. T.C Kotwal, the learned counsel for the respondents, on the other hand; argued that the decree for restitution of conjugal rights cannot by itself put an end to the criminal court in proceedings, under S. 488 Cr. P.C and it still remained discretionary with the learned Magistrate to cancel or vary the order of maintenance and while exercising his discretion it is the duty of the magistrate to satisfy himself as to whether the decree which had been obtained by the husband was meant only to frustrate an order of maintenance or actuated by any genuine desire to take the wife back in his fold and maintain her.

5. With a view to answer the question posed in the beginning of this order, it would be desirable to first notice the provisions of S. 489 of the Cr. P.C It reads:

“489. Alteration in allowance:— (1) On proof of a change in the circumstances of any person receiving Under S. 488 a monthly allowance, or ordered under the same section to pay a monthly allowance to his wife or child, the Magistrate may make such alteration in the allowance as he thinks fit: Provided that if he increases the allowance, the monthly rate of five hundred rupees in the whole be not exceeded.

(2) Where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under S. 488 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.”

6. Sub-sec. (2) of S. 489 empowers a Magistrate to consider whether in consequence of a Civil Court decree for restitution of conjugal rights he has to cancel or vary the order of maintenance passed under S. 488 Cr. P.C The discretion conferred by the provision is wide but it must be exercised judicially and, not mechanical as suggested by Mr. Goni. A Magistrate is entitled and, indeed, duty bound to satisfy himself that the decree-holder is genuinely prepared to give effect to the decree of the Civil Court and has a sincere desire to offer his wife the matrimonial home. The mere fact that the Civil Court was satisfied about his desire to resume cohabitation may be enough to pass an ex parte decree but would not, ipso facto, justify the Magistrate's surrendering his own discretion which he has, to exercise according to the facts of the case, as before he decides to cancel the order of maintenance he must satisfy himself that the husband was genuinely interested in enforcing the decree by making sincere efforts for reunion for which he had to prove that it was not merely a “paper decree” obtained only to frustrate the order of maintenance. The Criminal Court has to be very careful before cancelling the order of maintenance under S. 489(2) because the legislative intent reflected in the said section is clear enough to indicate that the mere passing of a decree by the civil court cannot by itself nullify an order of maintenance. If it appeared to the Magistrate that the husband was not really anxious to get his wife back to live with him ion the ordinary terms of husband and wife, he would be perfectly justified in holding that the object of the decree for restitution of conjugal rights was merely to get the maintenance order cancelled and the criminal court would be competent and indeed, duty bound not to exercise its discretion under 489(2) Cr. P.C to cancel the order of maintenance. However, after a Civil Court grants a decree to the husband for restitution of conjugal rights and the husband sincerely wishes to execute the decree but the wife without any sufficient cause refuses to comply, it may be a good ground for cancelling an order of maintenance. It is thus, obligatory ter the Magistrate to carefully scrutinize the material on the record to determine the bona ifides of the husband as also to evaluate whether despite the decree and desire of the husband to resume cohabitation, the wife has any sufficient cause to refuse to live with the husband and if she has, and the magistrate is so satisfied about the genuineness of the ground on the part of the wife for refusal to live with him, he cannot, despite the presence of decree for restitution of conjugal rights, cancel an order of maintenance. Thus, the answer to the question posed in the opening paragraphs of the judgment has to be in the negative. In the view that I have taken, I find support from the judgment of the Rajasthan High Court in Jhanwarlal v. State of Rajasthan, AIR 1969 Raj 29 : (1969 Cri LJ 306). After relying on a catena of authorities, while dwelling upon the powers of the Magistrate to cancel an order of maintenance in consequence of a decision of a competent Civil Court, it was observed:

“From what has been discussed above, it is manifest that the Magistrate, acting under sub-sec. (2) of S. 489 Cr. P.C has a discretion in giving effect to a Civil Court's decree. On a decree for restitution of conjugal rights in favour of the husband, the Magistrate is not bound to cancel an order passed under S. 488 Cr. P.C He must consider it along with other circumstances. If the Magistrate is satisfied that the object of the husband in obtaining a decree for restitution of conjugal rights is to get the maintenance order cancelled and not to take his wife back he may decline to cancel his previous order. The mere fact that a Civil Court has passed a decree for restitution of conjugal rights will not nullify the order for maintenance passed by the Magistrate. Where the husband bona fide wishes to execute the decree for restitution of conjugal rights but the wife unreasonably refuses to obey, the order for maintenance may be cancelled.”

7. Applying the exposition of law as given above to the facts of the instant case, the conclusion becomes irresistible that the order of the learned Judicial Magistrate Ist Class, declining to revoke the order of maintenance in the facts and circumstances of the case and on the basis of the material on the record, was right and is unexceptionable. After having obtained an ex parte decree for the restitution of conjugal rights, the husband kept back that fact from the Court below not only on 7-3-1986 but even subsequent thereto and even attempted to further delay the payment of arrears of maintenance by filing a transfer application. He disclosed about the factum of the ex parte decree of restitution of conjugal rights for the first time when he filed his objections to the application on 13-8-1986. It is pertinent to mention here that even at this stage the husband took no positive step to execute the decree of the Civil Court. In the objections also, the husband did not even, state, let alone assert, that he had taken any steps to execute the ex parte decree for restitution of conjugal rights obtained by him as early as on 17-2-1986 i.e, about six months prior to the filing of the application. In the objections, on the other hand, he stated in para 4 as follows:

“That the non-applicant (petitioner) had tried his leval best to persuade the petitioner to reside along with the daughter with the on-applicant and finally obtained a decree u/S. 9 of the Hindu Marriage Act from the Court of District Judge, Kathua, and therein the Hon'ble Court had directed the petitioner to reside along with the daughter with the non-applicant and in the light of the decree, the order of this Hon'ble Court is not enforceable.”

8. A perusal of the ex parte decree of restitution of conjugal rights passed by the learned District Judge, Kathua, does not show any ‘direction’ as was alleged by the husband in his objections, notice above. The husband has been making desperate efforts to frustrate an order of maintenance validly passed by the Magistrate and upheld by this Court by taking recourse to delaying tactics. Even during the trial of the application under S. 488 Cr. P.C by the learned Judicial Magistrate 1st class, Hiranagar, the husband, it appears, had made an offer to maintain the wife on her living with him but the learned trial magistrate found that the offer was not bona fide and even otherwise since the husband was keeping a mistress, it was a “sufficient ground for the applicant to live separately from the non-applicant” (from the order of the learned Judicial Magistrate Ist. Class, Hiranagar, dt. 17-4-1982.) The aspect that the husband was keeping a mistress finds no mention in the decree for restitution of conjugal rights and, therefore, keeping all the facts and circumstances of the case in view, as have been notice above, the trial Court, in my opinion, was perfectly justified in declining to exercise the discretion in favour of the husband to cancel the order of maintenance only on the ground that a decree for restitution of conjugal rights had been obtained by the husband against the wife. Since, the obtaining of that decree was rightly found by the trial Court to be only a camouflage aimed at frustrating the order of maintenance, the revision petition calls for no interference and is dismissed as such and order of the trial Court upheld.

9. Petition dismissed.