MALLAPPA LINGAPPA JOTAWAR Vs. CHOLAWWA AND

JUDGEMENT

(1.) The petitioner who is the husband asks me to direct the Magistrate to stay the proceedings before him instituted by his wife for the payment of maintenance to her under Section 488 of the Code of Criminals Procedure. The reason why the petitioner asks for that order is that he made an application on May 29, 1961, after the wife made her application to the Criminal Court, for a decree of divorce under Section 13 of the Hindu Marriage Act and also for a decree for judicial separation under Section 10. The Court below came to the conclusion that it was not proper to stay the proceedings in the Criminal Court for the mere reason that the proceedings under the Hindu Marriage Act were pending in the Civil Court

(2.) Mr. Savanur appearing on behalf of the petitioner contends that the view taken by the Courts below overlooks the provisions of Section 4 of the Hindu Marriage Act, which reads:

(3.) According to the argument advanced by Mr. Savanur, since Section 24 of the Hindu Marriage Act entitled the wife to apply for payment of interim maintenance to her during the pendency of the proceedings institutem by the husband for a decree of divorce and for a decree for judicial separation, Section 488 of the Code of Criminal Procedure which authorises an order similar to the one which may be made under Section 24 of the Hindu Marriage Act, became inoperative, and that therefore, since the wife in the civil proceedings started by her husband did make an application for interim maintenance on September 3, 1981, and the application was pending before the Civil Court, the Magistrate had lost jurisdiction to proceed with the application made by the wife.