PIARA SINGH Vs. SATWANT KAUR

JUDGEMENT

(1.) PIARA Singh, the husband, has filed this petition under Section 482 of the Code of Criminal Procedure for quashing order dated December 3, 1986 (P/l) passed by Additional Chief Judicial Magistrate, Hoshiarpur and order dated July 30, 1987 (Annexure P/3) passed by Additional Sessions Judge, Hoshiarpur on proceedings under section 125 of the Criminal Procedure. The Magistrate on the application of Satwant Kaur, the wife, allowed maintenance to her at the rate of Rs. 450/- per mensem and a sum of Rs. 300/- per mensem to Pardeep Singh, the son of the parties. The Additional Sessions Judge reduced this amount on revision filed by Piara Singh. The maintenance allowed to Satwant Kaur was reduced from Rs. 450/- to Rs. 350/- per mensem and for Pardeep Singh from Rs. 300/- to Rs. 230/- per mensem.

(2.) THE contention of Mr. Suresh Amba, Advocate, for the petitioner, is that the Additional Sessions Judge completely ignored the fact that a decree for restitution of conjugal rights had been passed by the Court in his favour against Satwant Kaur which was not being complied with and Satwant Kaur was not entitled to the grant of maintenance in proceedings under section 125 of the Code of Criminal Procedure. The Additional Sessions Judge ignored the decree passed by the trial Court on the ground that an appeal was pending in the High Court. Mr. Suresh Amba has produced a copy of the order of the High Court in F.A.O. No. 218-M of 1986 (Satwant Kaur v. Piara Singh), decided on Sept. 1, 1997 by Gokal Chand Mital, J. The appeal was dismissed The judge- ment and decree of the trial Court for restitution of conjugal rights was maintained. The matter was considered by Balraj Tuli. J. as far back as 1974 in Atma Ram Sharma v. Manjit Rani alias Ram. Murti and,another, 1974 Chandigarh Law Reporter 217.It was held that when there was a decree for restitution of conjugal rights passed by a civil Court in favour of a person against his wife which was not being complied with, the wife could not apply to the Magistrate for the grant of maintenance under section 488 of Criminal Procedure Code (old Code), The Magistrate was not justified in granting maintenance allowance. Similar view was taken by K.S. Tiwana, J. in Surjit Singh v. Gurmel Kaur and others, 1977 P.L.J. 293,and Joginder Singh v. Dalbir Kaur alias Balbir Kaur, 1980 P.L.R. 665.In view of the consistent decision of this Court, as referred to above, Satwant Kaur could not be allowed maintenance under section 125 of the Code of Criminal Procedure for the simple reason that a decree for conjugal rights was passed against her which was not being complied with.

(3.) FOR the reasons recorded above, this petition is partly allowed. The order of the Magistrate and that of the Additional Sessions Judge are quashed to the extent they provide maintenance to Satwant Kaur. However, these orders will remain in force qua maintenance allowed to Pardeep Singh. There will be no order as to costs in this petition.