MADAN MOHAN MAITY Vs. RITA RANI MAITY

JUDGEMENT

(1.) This Rule is directed against an order pasted by the Sub-Divisional Judicial Magistrate, Tamluk, namely, order No. 12 dated 23-12-80 and also all subsequent orders passed by the learned Magistrate. So far as the order No. 12 is concerned, that relates to an application which was filed by the opposite party, wife with the prayer for maintenance of Rs. 100 per month as awarded by the learned Magistrate for the period 1-1.80 to 22-12-80, the total being Rs. 1,173.33 p. The Court issued a notice on the petitioner to deposit the said sum in Court by 18-2-81. On the last date that is on 1-4-81 the warrant of arrest which was issued by the learned Magistrate for not complying with the notice regarding deposit of the said sum was sought to be stayed by the learned advocate appearing on behalf of the petitioner on the ground that the revisional application has been filed before the High Court. The learned Magistrate according directed the O.C. to enquire whether any stay order has been granted by the High Court and, if not, to execute the warrant of arrest by 18.6.81. Stay order was granted by this Court on an application made on behalf of the petitioner husband on 28-4-81 and an ad interim stay of execution of warrant of arrest was granted. That matter came up for hearing in presence of both sides.

(2.) The only important point that was urged before me by the learned advocate for the petitioner is that the husband, petitioner had obtained a decree for restitution of conjugal right from the civil court in Midnapore, in view of that decree, according to the submission of the learned advocate for the petitioner, the order passed by the learned Magistrate for maintenance under section 125 Code Criminal Procedure for a sum of Rs. 100 per month would be liable to be cancelled under section 127(3) of the Code of Criminal Procedure.

(3.) It is submitted by Mr. Roy that the husband had made offer to the wife to came back and to live with him after the decree for restitution of conjugal right was obtained by him but the wife did not come back and under these circumstances, she was not entitled to any maintenance from the husband. Accordingly, the maintenance order passed by the learned Magistrate in Misc. Case No. 45 of 1974 should be cancelled.