FAKRUDDIN SHAMSUDDIN SAIYED Vs. BAI JENAB

JUDGEMENT

(1.) This is an application in revision asking us to set aside an order of the Sessions Judge of Broach refusing to interfere with an order of the trial Magistrate by which he declined to modify the order which he had made under Section 488 of the Criminal Procedure Code, 1898, and the question involves the construction of Section 489, Sub-section (2), of that Code.

(2.) The wife obtained an order under Section 488 for maintenance on October 6, 1941. The husband made an attempt subsequently to avoid the rigours of that order, which attempt was unsuccessful, and he thereupon filed a suit in the civil Court asking for an order for restitution of conjugal rights, and on October 27, 1942, he obtained such an order from the First Class Subordinate Judge of Broach. Directly he obtained a copy of that order, he applied to the Magistrate to revoke the order which he had made under Section 488, but the learned Magistrate declined to revoke the order, and his decision was upheld by the learned Sessions Judge.

(3.) Section 489, Sub-section (1), of the Criminal Procedure Code, enables a Magistrate, on a change in the circumstances of the party receiving an allowance under Section 488, or ordered to pay an allowance, to modify the order. Then, Sub-section (2) is in these terms : Where it appears to the Magistrate that, in consequence of any decision of a competent civil Court, any order made under Section 488 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly