K JAGMAIAH Vs. K SESHIREKHAMMA

JUDGEMENT

(1.) Rather a ticklish question as to the Interpretation of sub-sections (4) and (5) of section 488 of the old Criminal Procedure Code which were verbatim reproduced in sub-sections (4) and (5) of Section 125 of the present Code arises In this case.

(2.) A wife presented an application under section 488 for maintenance agianst the husband. The husband raised several objections in his counter to the granting of maintenance, but living in adultery was not one of them. However, he alleged some adultery In his evidence. He was also cross-examined on that aspect and finally, the Court disbelieved his evidence about'adultery and repelled that plea. In consequence, on 30th of December, 1971. it awarded maintenance at the rate of Rs. 50/-per month. Aftersome time, she filed an application to enforce it, and an exparte order was granted in her favour. This ex-parte order to enforce it was set aside in appeal and the husband was given an opportunity to raise his defence to the enforcement. He accordingly filed a counter to the enforcement saying that the wife was living In adultery.

(3.) The learned Magistrate wlthou holding any enquiry, directed that enforcement should be proceeded with. In appeal, the learned Sessions judge partly allowed the appeal and dismissed it In the other part. While upholding the right of the wife to enforce the order from the date of the application, namely, 14-10-1969 upto 30th of December. 197l. which is the date of the order, the court below set asfde the trial Court's direction to proceed; with the enforcement of the maintenance due from 30th December. 1971, and remanded the matter to the Magistrate for enquiry into the defence set up by the husband. Against this order of the learned Sessions judge dismissing the appeal to the extent of the maintenance from 14 10-1969 till 30th of December 1971, the husband has preferred this Criminal Revision case.