SMT. PHULBASI Vs. STATE THROUGH SHEO NATH

JUDGEMENT

(1.) THE main question arising for consideration in this reference is as to whether an order passed Under Section 488(1), Code of Criminal Procedure is rendered ineffective and inoperative because of a temporary reunion between the parties to the proceedings. The case has been referred to a larger Bench by a learned single Judge of this Court because of the conflict between Pearey Lal v. Smt. Naraini, 1935 AWR 11331 decided by Ganga Nath, J. and Nathu Ram v. Smt. Rashmani, 1967 AWR 722 decided by Rajeshwari Prasad, J.

(2.) THE relevant facts giving rise to this reference are that the Applicant Smt. Phulbasi who is admittedly the legally wedded wife of the opposite party, Shivnath, made an application in 1952 Under Section 488, Code of Criminal Procedure for the grant of maintenance allowance on the ground that her husband neglected and refused to maintain her. Her application was allowed and Shivnath was ordered to pay Rs. 30/ - per month to her as maintenance allowance. A revision preferred by Shivnath was dismissed on 9 -7 -1954. Thereafter Smt. Phulbasi made an application for recovery of arrears of maintenance allowance but some sort of reconciliation took place between the parties, as a result of which the Applicant went back to the house of Shivnath and actually lived with him for about a week. Thereafter, it is alleged, that Shivnath again turned out Smt. Phulbasi.

(3.) AGGRIEVED by the order of the Sub -Divisional Magistrate, Smt. Phulbasi went up in revision before the learned Sessions Judge, Varanasi. The learned Sessions Judge, relying on the decision of Pearey Lal (supra) and certain other reported cases, took the view that the earlier compromise between the parties, as a result of which Smt. Phulbasi had resided with her husband for about a week, did not disentitle the Applicant from claiming enforcement of the order passed in her favour Under Section 488(1), Code of Criminal Procedure. He also took the view that the application made by the Applicant was maintainable and she could claim arrears of maintenance allowance for a period of one year preceding the date of the application. The learned Sessions Judge made a recommendation to this Court that the order passed by the learned Magistrate be set aside and a warrant may be issued for the recovery of the arrears of the maintenance allowance claimed by the Applicant.