Beaumont, C.J:— In this revision application the material facts are that in the year 1928 an order was made by the City Magistrate of Ahmedabad under Section 488 of the Cr PC, on an application by the present applicant, who is a wife, for payment of maintenance by the husband to herself and her daughter. On 28th November 1928, a compromise decree was passed in a civil suit brought by the husband for restitution of conjugal rights. Under that decree it was provided that a certain sum should be paid for arrears of maintenance and that the husband should pay Rs. 15 a month for maintenance of the wife and Rs. 5 a month for maintenance of the daughter and the order already made under S. 488 was to be cancelled. In accordance with that decree the order made under S. 488 was cancelled in March 1930. The arrears of maintenance under the decree of the Civil Court were paid, but the subsequent maintenance provided by that decree was not paid. In the circumstances, the wife applied for a fresh order under S. 488. The learned City Magistrate held that the decree of the Civil Court directing maintenance ousted his jurisdiction under Section 488 of the Cr PC, and he referred to the case in 59 Cal 12291 in support of his view.
2. In appeal the learned Sessions Judge upheld the decision of the Magistrate. The case referred to in the Calcutta High Court is not an authority on the point. At the most it contains a dictum by the learned Judge that a decree of a Civil Court might bar the jurisdiction of a Magistrate under Section 488 of the Cr PC. We have therefore to deal with the matter as one of principle, S. 488 contains no direction that an order, under that Section cannot be made if there is a decree for maintenance of a Civil Court, although under sub-s. (4) conditions are specified under which an order cannot be made. Of course the existence of a decree of a Civil Court is relevant when the Magistrate is considering what form of order he should make under S. 488, but in our opinion the mere existence of a decree of a Civil Court does not oust the jurisdiction of a Magistrate in a proper case to make an order under S. 488. It seems to us wrong in principle to allow the husband in this case to take advantage of the decree which, he has made no attempt, to carry out. We think therefore that the case must be sent back to the learned City Magistrate to be dealt with on the merits. It is for him to consider whether there is any evidence which would bring the case under sub-s. (4) and if he comes to the conclusion that an order for maintenance should be made, he ought to make it clear in his order that anything paid under the decree of the Civil Court will be taken into account against anything which he may order to be paid. That is a mere question of the form of the order. In our view the existence of the decree of the Civil Court does not oust the jurisdiction of the Magistrate. The case must therefore go back to the lower Court. Husband to pay the costs of the application in this Court. Costs in the lower Court to be decided by the lower Court.
N.S/R.K
3. Case sent back.
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