GANESH RAM Vs. PATASI

JUDGEMENT

(1.) THIS revision petition) arising out of the proceedings under Section 485, Code of Criminal Procedure, is directed against the order dated December 24, 1974 by which the learned Munsiff and Judicial Magistrate, Jodhpur District, Jodhpur dismissed the husband's application dated April 14, 1970 under proviso (1) to Sub -section (3) of Section 488, Code of Criminal Procedure.

(2.) THE facts of the case may be stated within a narrow compass: The non petitioner Mst. Patasi (who will be hereinafter referred to as 'the wife') made an application against the petitioner Ganeshram (who hereinafter be referred to as 'the husband') for maintenance under Section 488, Code of Criminal Procedure. The husband having remained absent an exparte order for maintenance at the rate of Rs. 40/ - per month was passed in favour of the wife on January 20, 1969. The husband applied for setting aside the exparte order, but his application was refused. Thereafter on April 14, 1970 he made an application purporting to be under Sub -sections (4) and (5) of Section 488, Code of Criminal Procedure, praying that the order granting maintenance to the wife may be vacated as he is prepared to keep her with him. This application was resisted by the wife. However, by his order dated July 1, 1971 the Sub -divisional Magistrate set aside the earlier order dated January 20, 1969. Consequently, the wife filed a revision application in the Court of Additional Sessions Judge No. 1, Jodhpur who made a reference to the High Court and the High Court by its order dated August 30, 1972 allowed the reference thereby upholding the earlier order of the Magistrate, dated January 20, 1969, but further directed the Magistrate to give opportunity to both the parties to lead evidence before deciding the application filed by the husband under Section 488 (5), Code of Criminal Procedure.

(3.) THE only point urged by the learned Counsel for the petitioner is that the wife has failed to prove the grounds of refusal by her to live with the husband, and, therefore, the application made by the husband should be allowed, and the order granting maintenance should be vacated.