1. This rule was issued on the District Magistrate of 24-Parganas and on the opposite party to show cause why an order for maintenance obtained at the instance of the opposite party should not be set aside in circumstances to be detailed hereafter. It appears that the opposite party Bai Arvinda was married to the petitioner in the year 1924 at Ahmedabad. Both the husband and the wife were natives of Bombay. After the marriage they lived together, it is said, till 1927 when the opposite party, misled by her paternal relations, elected to live with them and refused to join her husband in spite of several serious attempts made by him in that behalf. On 16th August 1932 the petitioner filed a suit for restitution of conjugal rights. On 1st March 1933 the wife Bai Arvinda put in a petition before the Police Magistrate of Alipore for maintenance under R. 488 of the Cr PC. On 5th August of the same year that petition was allowed and, the petitioner before me was directed to pay Rs. 30 as maintenance to the opposite party. The civil suit for restitution was, however, decreed in favour of the petitioner on 31st July 1934. That fact was brought to the notice of the Police Magistrate of Alipore on 3rd November 1934 by the petitioner. On 3rd December 1934 the Magistrate in the presence of and after hearing both the parties passed the following order:
A petition filed by defendant saying he has obtained decree for restitution of conjugal rights against the petitioner. The judgment is dated 31st July 1934. So up to 30th July 1934 petitioner is to have maintenance order executed.
2. In other words, the effect of the Magistrate's order was that after 30th July 1934 the wife was to have no further maintenance. It appears that the decree for restitution of conjugal rights was set aside by the District Judge of Ahmedabad on 10th March 1936, and it is said that an appeal is pending before the Bombay High Court against the said decision. On 17th April 1936 the wife informed the Police Magistrate of Alipore of the decree, passed by the District Judge of Ahmedabad'setting aside the decree for restitution of conjugal rights.
3. The Police Magistrate on 27th July 1936 cancelled his previous order rescinding the order for maintenance and restored the original order for maintenance on 5th August 1933. The petitioner being aggrieved by this order has obtained the present rule.
4. It is argued by Mr. Mukherjee on behalf of the petitioner that the Police Magistrate had no jurisdiction to restore to previous order seeing that it had the effect of reviving the previous order which had already been cancelled and he relies on the provisions of Section 369 of the Cr PC. In my opinion S. 369, does not apply to the present case in view of the express provisions of Sections 488 and 489 of the Cr PC. S. 489 by Cl. (2) suggests that it is open to the Magistrate either to alter or to vary the order for maintenance if circumstances so require. It appears that this order cancelling the previous order for maintenance was really obtained by fraud upon the Magistrate in his not being apprised on that date that the decree for restitution of conjugal rights was liable to be set aside by the District Judge of Ahmedabad on appeal which was then pending before him and an order obtained by fraud must be treated as having no legal effect. Indeed the Magistrate says that he would not have cancelled the maintenance order on 16th October 1935 if he had known that an appeal had been filed against the decree for restitution of conjugal rights. Any order obtained by fraud practised on the Court is, in my opinion, one which is to be treated as a nullity and the result is that the previous order for maintenance stands. S. 489(2) really suggests that it is open to the Magistrate to vary the order of maintenance or to alter it if circumstances so require.
5. Mr. Mukherjee has contended that the wife ought to have put in a fresh petition. That merely is a matter of form and not of substance. It is not the intention of the Procedure Codes that they should encourage the hindering of justice and all procedure is intended to help justice. I should think that the view taken by the Magistrate is a correct one, and that even the criminal Courts have power to ignore their orders passed either under a mistake or by fraud seems to me to be one which is justified by the decisions of this Court. Reference has been made by Mr. Bhattacharyya who appears for the Crown to a decision of this Court in 37 CLJ 1801 where Sir Lancelot Sanderson, C.J, as he then was, and Panton, J. said with reference to a criminal case thus:
Moreover, the Magistrate found that the petition to which I have referred and which was filed by the lady on 24th January 1919, was obtained by fraud. It is obvious that such a petition could not have the effect of cancelling the order dated 14th September 1918.
6. That was said in a case which also arose under the provisions of Section 488 of the Cr PC. In this view the rule must be discharged.
W.D/A.L
7. Rule discharged.
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