S.S Sudhalkar, J.:— The petitioner is the husband of the respondent. The order of interim maintenance was passed on 23.11.94 against the petitioner on an application for maintenance under section 125 of the Code of Criminal Procedure filed by the respondent. The said order is at annexure P-2. The petitioner filed a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights and vide judgment dated 31.3.1995, the learned Additional Senior Sub Judge, Nakodar allowed the said petition and passed a decree for restitution. The petitioner filed an application under section 127 of the Cr.P.C (for short, (‘the code’) which was dismissed on 28.10.1995 Being aggrieved by the said order, the petitioner has filed this revision petition in this Court.
2. I have heard learned counsel for the parties.
3. Learned counsel for the respondent has taken up a preliminary objection that the order under challenge is against the order of interim maintenance which was passed on 23.11.1994 Learned counsel for the petitioner, on the contrary, argued that he is not challenging the original order and has also submitted that under the Code, he has a right to pray for cancellation of the order and when the application for cancellation of the order was dismissed, he has come in revision and, therefore, the revision petition cannot be said to be barred by time. According to section 127(2) of the Code, the Magistrate has power to cancel or vary any order made under section 125 of the Code in consequence of any decision of a competent Civil Court. In this case, the decision of the Civil Court is annexure P-3 dated 31.3.1995 by which a decree for restitution of conjugal rights was passed : In that case, the competent civil court has held that the respondent is legally wedded wife of the petitioner and she has withdrawn herself from the society of the petitioner without sufficient cause. With this order in the background the learned counsel for the petitioner argued that the maintenance cannot be granted to the wife if she refused to live with the husband or if they are living separately by mutual consent. For reliance of this submission, he has referred to Section 125(4) of the Code which reads as under:
“No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.”
4. Relying on this provision, learned counsel for the petitioner has vehemently argued that the respondent is not entitled to the maintenance in view of the order of the Civil Court in which it is conclusively held that she has withdrawn herself from the society of the petitioner without sufficient cause. The argument of learned counsel for the petitioner has to be accepted because the finding of the civil Court that the respondent has withdrawn herself from the society of the petitioner without any sufficient cause is binding to a criminal court and unless the said finding is set aside by any competent court, the same will be final.
5. Learned counsel for the respondent argued that the said decree is an ex parte decree. However, though on the face of it may appear that it is an ex parte decree but on reading the judgment, it is clear that notice of the petition was issued to the respondent who moved an application under section 24 of the Hindu Marriage Act for maintenance pendente lite and expenses of litigation and the petitioner also filed reply to the said application but the respondent did not file the reply of the main petition and ultimately she was proceeded ex parte. It means the the respondent had appeared before the court of learned Additional Senior Sub Judge who passed the decree under Section 9 of the Hindu Marriage Act.
6. Learned counsel for the respondent has cited before me the case of Vishwanath Chakrawarti v. Smt. Anjali Chakrawarti, 1991 (3) Recent Criminal Reports 263. In the said case the Allahabad High Court has held that the decree passed by the Court concerned was a decree for divorce and as even a divorced wife is entitled to maintenance, the possibility cannot be ruled out that on coming to know about the existence of an ex parte decree for divorce against Smt. Anjali Chakrawarti (the wife in that case), she did not deem it necessary to get the same set aside, as even after the divorce, she was entitled to claim maintenance till she got married again. The said observation cannot help the respondent, firstly because the decree for restitution of conjugal rights was not an ex parte decree. Moreover when there is a finding of the civil court that the respondent has withdrawn herself from the society of the petitioner without any sufficient cause, she was not entitled to the maintenance in view of the provision of section 125(4) of the Code.
7. Learned counsel for the respondent has cited before me the case of Kundan Lal v. Smt. Shanti Devi, 1988 (2) Recent Criminal Reports 219. It has been held by the High Court of Jammu and Kashmir in that case that subsequent obtaining of exparte decree for restitution of conjugal rights does not ipso facto cancel order of maintenance nor it deprives the wife to claim maintenance. It has also been held that it is obligatory for the Magistrate to carefully scrutinize the material on the record to determine the bona fides 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. As against this, the petitioner has cited before me the case of Sampuran Singh v. Gurdev Kaur, 1985 (1) RCR 490. It has been held by this Court in that case that wife can claim maintenance if conduct of husband was such which obstructed the wife to obey the decree of restitution of conjugal rights. It was also held that if the husband was keeping another woman in his house, it was a valid ground for the wife to remain away from husband and that the wife was entitled to maintenance. Learned counsel for the petitioner has also cited before me the judgment in the case of Teja Singh v. Smt. Chhoto, Volume IV Marriage Law Journal page 400. It has been held by this court in it that the finding of the Magistrate being contrary to the finding recorded by the Civil Court which held the petitioner guilty of having deserted the respondent, the order granting maintenance was held unsustainable and was set aside and it was held that the Magistrate was bound to give effect to finding of the civil court.
8. In view of the above-mentioned judgment of this Court, the judgments produced by the respondent cannot be said to be applicable to the facts of the present case. In view of the above position, after the decree or restitution of conjugal rights, the petitioner was justified in applying for revoking the order as per section 127(2) of the Code. The learned Addl. Chief Judicial Magistrate has held that the order granting interim maintenance was not set aside by any competent court. However, there is nothing to show as to how the learned Additional Chief Judicial Magistrate was not competent to cancel the order and, therefore, he has erred in not exercising its jurisdiction when provision of section 127(2) of the Code was invoked.
9. Learned counsel for the respondent has cited before me the case of Shri Gurpartap Singh… v. Smt. Satwant Kaur…., 1991 (1) Recent Criminal Reports 40 (DB) : 1990 (2) All India Criminal Law Reporter 783, wherein it has been held that when the husband was opposing the grant of maintenance on the ground of refusal of wife to live with him without any sufficient cause and, therefore, not entitled to maintenance, this plea could not be considered at that stage with regard to the grant of interim maintenance and this aspect can be considered by the trial court at the time when petition under section 125 of the Code was finally decided. In that case another question as to whether it was obligatory for the court to give special reasons for granting maintenance/interim maintenance under Section 125 of the Code from the date of application was referred to the Division Bench and after reference when the matter was heard, the learned Single Judge also observed that the second contention raised in that case that the respondent wife has refused to live with the petitioner husband without any sufficient cause could be considered by the trial court at the time when the petition under section 125 of the Code is finally decided and not at the stage of granting interim maintenance. However, it can be seen that in that case the proceedings were not under section 127(2) of the Code nor there was a case as in the present one in which a decree for restitution of conjugal rights was passed. This being so, the observation of the learned single Judge will not apply to the facts of the present case.
10. Looking to the above reasons, it can be seen that the petitioner has made a case under section 127(2) of the Code. Learned counsel for the respondent has argued that the order is for interim maintenance only. However, there is no specific provision regarding interim maintenance in the Code and only when an application under section 125 of the Code is made, the order of interim maintenance is passed and this being the position, the provision of section 125 read with section 127 of the Code as they apply to maintenance can also be made applicable to interim maintenance.
11. In view of the above, the revision petition succeeds and the order of learned Magistrate annexure P-1 dated 28.10.1995 is set aside and the order of payment of interim maintenance is quashed.