NATHU RAM Vs. ATAR KUNWAR

JUDGEMENT

(1.) THIS is a reference by the Civil and Sessions Judge of Orai recommending that the order of the Sub-Divisional Magistrate, Jalaun dated 4-1-1965 by which he directed payment of maintenance allowance to a wife in a proceeding under Section 488 Cr. P. C. be set aside and the application for the allowance be rejected.

(2.) THE claimant is Smt. Atar Kunwar and she claimed maintenance from her husband, Nathu Ram, for herself and for her two children. The claim was contested by Nathu Ram who, while admitting that the claimant was his wife, denied that she was entitled to maintenance. After taking the evidence of the parties, the Sub-Divisional Magistrate, Jalaun granted to the claimant an allowance of Rs. 30/- per month from the date of the application. Against this order Nathu Ram filed an application in revision in the Court of Session, and that has led to the reference.

(3.) ADMITTEDLY, Smt. Atar Kunwar was married to Nathu Ram about eight years before the commencement of this proceeding. After a peaceful married life for some time the couple became estranged and eventually started living apart. Smt. Atar Kunwar then filed an application for the grant of an allowance against Nathu Ram under section 488 Cr. P. C. and on 12-11-1960 an order was passed in her favour granting an allowance of Rs. 20/- per month. Later, however, the parties got reconciled to each other and resumed living together; but, again, there was a rupture, and it was followed by an application under Section 488 (3) Cr. P. C. by Smt. Atar Kunwar for arrears of the allowance granted to her by the order dated 12-11-1960. The Sub-Divisional Magistrate who dealt with the application held that, in view of the subsequent resumption of married life by the parties, Smt. Atar Kunwar was not entitled to claim any allowance on the basis of the order dated 12-11-1960 and rejected the application on 19-7-1963. He, however, observed that the applicant would be at liberty to apply afresh for the grant of an allowance. The proceeding giving rise to this reference was then started by Smt. Atar Kunwar on 25-9-1964. It appears that some time in 1964 Nathu Ram instituted a proceeding under Section 10 of the Hindu Marriage Act against Smt. Atar Kunwar praying for a decree for judicial separation. In that proceeding Smt. Atar Kunwar filed an application on 10-11-1964 stating that for the preceding three years she had been living with her father and had not gone to her husband Nathu Ram, and further that she was neither prepared to go to him then nor would she go to him ever afterwards. The prayer in the application was that the decree claimed by the plaintiff be passed. A decree for judicial separation was, accordingly, passed by the Civil Judge of Oral on 1311-1984. Before the learned Civil and Sessions Judge of Orai who has made this reference, it was contended on behalf of Nathu Ram that a decree for judicial separation bars a claim for an allowance under Section 488, Cr. P. C. and reliance for this contention was placed on Smt. Ravendra Kaur v. Achant Swarup, 1965 All LJ 602 = (AIR 1966 All 133 ). The learned Civil and Sessions Judge was of the view that the above decision completely supported the contention, and the reference is based entirely on the acceptance of that contention.