SADASHIV NATHU Vs. PARUBAI

JUDGEMENT

(1.) THE question in this case is whether the cancellation by the Magistrate of an order granting maintenance under Section 488, Criminal Procedure Code operates ipso facto from the date of the original order itself, and thereby disentitles the maintenance-holder to getting anything by way of arrears during the period between the original making of the order and the date of cancellation. The sessions Judge heard the revision by the husband from the order of the Magistrate on the one hand cancelling the earlier order for maintenance and on the other granting the wife maintenance for the period between the making of the original order and the date of cancellation. The actual amount is only a small one. being the maintenance for about 11/2 month at the rate of Rs. 25. But the principle involved is important, and as apparently there is no decision of the Madhya Pradesh High Court on this subject it has to be examined at some length. The Sessions Judge himself has made a reference recommending that the grant of arrears of maintenance might be set aside, because the cancellation ipso facto goes to the dale of the original order itself, so that during the interval there is in the eyes of law no order in force.

(2.) THE facts of the case are quite simple. The wife who had been living with her father filed an application for maintenance under Section 488, Criminal Procedure code and was awarded Rs. 25 a month. Now the husband came to the Court and stated that he was prepared to keep her with him and wanted a direction to that effect and a cancellation of the maintenance order. If the wife still refused to go and live with him she should get no allowance. This was done about a month and a half after the original order. At the same lime the wife wanted the maintenance allowance for the interval since for that period there was a valid order the magistrate granted it. It is to be noted that the cancellation is without any qualification or condition. We are actually concerned with the effect of cancellation alone.

(3.) SECTION 488, Criminal Procedure Code contains different sub-clauses; but we are concerned with Sub-clause (5) and to some extent with (4 ).