DAHYALAL AMRATLAL BHAGAT Vs. BAI MADHUKANTA

JUDGEMENT

(1.) An order for maintenance was passed against the Petitioner. Subsequently he obtained a decree for judicial separation against the wife. On this ground he made an application to the learned Magistrate to cancel the maintenance order. The learned Magistrate refused to cancel or vary the maintenance order and he rejected the application of the petitioner.

(2.) Under section 488 (4) Criminal Procedure Code no wife shall be entitled to receive an allowance from her husband if she is living in adultery or if without any sufficient reason she refuses to live with her husband or if they are living separately by mutual consent. It is therefore clear that if without any sufficient reason the wife refused to live with her husband she is not entitled to receive maintenance Sub-sec. (2) of sec. 489 Cr. P. C. reads as follows :- Where it appears to the Magistrate that in consequence of any decision of a competent civil Court any order made under section 488 should be cancelled or varied he shall cancel the order or as the case may be vary the same accordingly. It is therefore clear that the Legislature has given more importance to the decision of a civil Court on points such as this.

(3.) Under sec 10 of the Hindu Marriage Act the husband is entitled to judicial separation. Sec. 10(1)(a) of the said Act reads as follows :- Either party to a marriage whether solemnized before or after the commencement of the Act may present a petition to the District Court praying for a decree for judicial separation on the ground that the other party (a) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. The Explanation to sec. 10(1) of the Hindu Marriage Act also reads as follows :- In this section the expression desertion with its grammatical variations and cognate expressions means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the willful neglect of the petitioner by the other party to the marriage. It is therefore clear that a decree for judicial separation should not be passed if the wife without sufficient reason does not live with her husband. The fact that a decree for judicial separation has been passed means that the wife has no reasonable ground not to live with her husband. In such a case it is clear that sub-sec (4) of sec. 488 Cri. Pro. Code applies and the wife is not entitled to maintenance. In such a case therefore the order for maintenance must be cancelled