KUNDAN LAL Vs. SHANTI DEVI

JUDGEMENT

(1.) Does a decree for restitution of conjugal rights obtained by the husband subsequent to an order for maintenance obtained by the wife under S. 488 Cr. P.C. ipso facto cancel that order and deprives her to claim maintenance, is the meaningful question which requires determination in this revision petition?

(2.) The facts are short and not in dispute. The petitioner is the husband of respondent 1 and father of respondent 2. The parties were married as far back as in 1958 and six children were born out of the wedlock. Subsequently the relationship between the husband and wife became strained and according to the wife the cause of strained relations was that the husband had kept a mistress by the name Mato Devi and on that account had turned her out of the matrimonial house. On 14-8-1980, the wife filed an application for maintenance under S. 488 Cr. P.C. claiming maintenance for herself and her minor daughter who was living with her. The application was resisted but after a full trial, the learned Munsiff Judicial Magistrate 1st Class, Hiranagar, allowed the application on 17-4-1982 granting maintenance at the rate of Rs. 150/- per month for the wife and the minor daughter living with her. Aggrieved, the husband assailed the order of the learned trial Magistrate in the High Court through Criminal Revision Petition No. 46 of 1982 which was dismissed on 14-11-1985 and the order of maintenance was maintained. Despite the failure of the husband in the High Court the husband did not pay up either the monthly maintenance or the arrears of maintenance which had accumulated. In Dec., 1985, the wife applied for enforcement of the order under sub-sec. (3) of S. 488 Cr. P.C. before the learned trial Magistrate claiming arrears of the maintenance amount. In the meantime it appears the husband applied for restitution of conjugal rights under S. 9 of the Hindu Marriage Act on 12-12-1985. The husband; succeeded in obtaining an ex parte decree of restitution of conjugal rights from the learned District Judge, Kathua, on 17-2-1986. The husband appeared before the learned Judicial Magistrate 1st Class, Hiranagar, on 7-3-1986 and the interim order shows, that he sought adjournment to liquidate the arrears of maintenance. He did not bring to the notice of the learned Magistrate that he had obtained any ex parte decree for restitution of conjugal rights which exposes the lack of bona fides on his part. The application was adjourned to 17-3-1986, when the husband instead of complying with the order, applied for the transfer of the recovery proceedings. On 7-6-1986, the transfer application was dismissed by the learned Chief Judicial Magistrate, Kathua. Following this, the husband appeared before the trial Court through his counsel and sought an adjournment to file objections. The objections were filed on 13-8-1986 wherein, for the first time, he disclosed about his having obtained a decree under S. 9 of the Hindu Marriage Act from the Court of District Judge, Kathua, and asserted that "In the light of the decree, the order of this Hon'ble court is not enforceable". Certain other objections were also raised to the petition by the husband. Vide order impugned in the revision petition the learned trial Magistrate, found that the husband had been playing hide and seek game with the courts and was trying to frustrate the operation of the order of maintenance and that the decree obtained by him (under S. 9 of the Hindu Marriage Act from the learned District Judge) was not bona fide as the object of obtaining the decree was only to frustrate the order of maintenance. The learned Magistrate, was satisfied that the object of the husband in obtaining a decree for restitution of conjugal rights was to get the order of maintenance cancelled and not to take his wife back and on being so satisfied he declined to cancel the order of maintenance.

(3.) Mr. G. N. Goni, learned counsel for the petitioner has submitted that the decree passed by the Civil Court under S. 9 of the Hindu Marriage Act in favour of the husband superseded the order for maintenance of the wife and the order of the Criminal Court ceased to have any effect in so far as the husband is concerned. He argued that the decree for restitution of conjugal rights, ipso facto, puts an end to the right of maintenance. Mr. T. C.Kotwal, the learned counsel for the respondents, on the other hand; argued that the decree for restitution of conjugal rights cannot by itself put an end to the criminal court in proceedings under S. 488 Cr, P.C. and it still remained discretionary with the learned Magistrate to cancel or vary the order of maintenance and while exercising his discretion it is the duty of the magistrate to satisfy himself as to whether the decree which had been obtained by the husband was meant only to frustrate an order of maintenance or actuated by any genuine desire to take the wife back in his fold and maintain her.