HAJI HUSSAIN SULAIMAN HODEKAR Vs. RUKHYA BI

JUDGEMENT

(1.) The husband against whom an order for maintenance for the wife and three children had been passed in M.C.2 of 1961 presented a petition to the District Magistrate of Kozhikode that he had filed a suit R.S.43 of 1961 before the Civil Judge,S.D.Ratnagiri for restitution of conjugal rights against the wife and had obtained a decree and claiming cancellation of the order in respect of the maintenance awarded to the wife.The learned District Magistrate dismissed the petition.The correctness of this finding is challenged in this Revision Petition.

(2.) It is contended by the learned counsel for the petitioner that the decision of the Civil Court ordering the wife to live with the husband -petitioner is binding on the wife and as such the District Magistrate ought to have cancelled the order of maintenance granted to the wife under S.489(2)Crl.P.C. Sub -section (2) of S.489 Crl.P.C.,is in these terms:

(3.) The argument is that the effect of the order of the Civil Court granting restitution of conjugal rights would automatically put an end to an order made by the Magistrate under S.488.But under S.489(2)the Magistrate has to consider whether in consequence of the Civil Court's decision he ought to cancel or modify his order.He has to exercise his discretion judicially and he is bound to satisfy himself that the applicant is really prepared to give effect to the order of the Civil Court,namely,to live with his wife.The mere fact that the Civil Court has satisfied on the point does not justify the Magistrate in surrendering his own discretion.