K.S Tiwana, J.:— This petition under Section 482 of the Code of Criminal Procedure, 1973, has been filed by the petitioner against the orders of the Judicial Magistrate 1st Class, Amritsar who on 16th November, 1977, awarded a maintenance of Rs. 100/- in favour of his wife Dalbir Kaur under section 125 of the Code of Criminal Procedure and of the Additional Session's Judge, Amritsar, who affirmed the order in revision.
2. The application of Dalbir Kaur respondent for maintenance that she had been maltreated and turned out of his house by the petitioner, her husband, who had neglected and refused to maintain her, was accepted by both the courts. The petitioner had initially taken the plea that he was willing to take the respondent to his house and keep her as his wife. His efforts to bring her back to her house had failed, as he could not persuade her. Before the Additional Sessions's Judge, he had stressed another ground that he had obtained decree under section 9 of the Hindu Marriage Act for restitution of conjugal rights against the respondent. On that ground she was not entitled to maintenance. Both the Courts had negatived the plea of the petitioner and accepted the case of the respondent.
3. The only ground stressed before this court is that in the presence of the decree by the civil Court in favour of the petitioner for restitution of conjugal rights against the respondent, the award of maintenance under section 125 of the Code of Criminal Procedure, 1073 could not be awarded. Although the decree under section 9 of the Hindu Marriage Act was ex-parte, but still it remains effective and binds the parties so long it holds the field and is not annulled. I have been referred to the statement of the respondent by the learned counsel for the petitioner in which she has admitted that the pendency of the proceedings under section 9 of the Hindu Marriage Act were to her knowledge. This means that she deliberately did not contest those proceedings. Two cases decided by this Court reported as Atma Ram Sharma v. Manjit Rani alias Ram Murti . 1974 C.L.R 217. and Rajpal Singh v. The State of Haryana . 1977 P.L.J Cr. 205., support this view that when a Civil Court decided in favour of the husband for restitution of conjugal rights holding the wife guilty of with drawal from the society of the husband the defaulting wife cannot invoke the maintenance provision as contained in the Code of Criminal Procedure ask for maintenance. In the case in hand, in view of the decree of the Civil Court the orders of the learned Magistrate awarding maintenance and of the revisional Court in affirming those are not in consonance with the law laid down in the two above-quoted judgements and for that reason require to be quashed. The petition is accepted and the order under challenge are quashed.
R.M.S
Petition allowed.