PEAREY LAL Vs. MTNARAINI

JUDGEMENT

(1.) This is an application in revision by Pearey Lal against the order of Mr. Abdul Waheed Khan Khalil, Magistrate, First Class, Meerut, under Section 488, Criminal P.C. This order was confirmed by the learned Sessions Judge of Meerut in revision. The opposite party Mt. Naraini, wife of the applicant, obtained an order under Section 488, Criminal P.C., for maintenance on 11 March 1932, against the applicant. The applicant made an application stating that he was willing to take his wife back, but it was rejected. Mt. Naraini lived for sometime thereafter with her husband and when she was turned out again by her husband she went to live with her sister. In 1935 she made an application to recover the maintenance (Rs. 4 a month) which had been allowed to her under the order of 11 March 1932. The applicant contested this application on the mere ground that Mt. Naraini had been living in adultery and therefore was not entitled to any maintenance. Both the parties produced evidence on this point and it was found by the learned Magistrate that the applicant's objection was false and that Mt. Naraini had not been living in adultery and was entitled to maintenance and passed an order for the payment of the arrears due. Against this order a revision was filed which was rejected by the learned Sessions Judge, Meerut, as stated above. The only point that is pressed by the learned Counsel for the applicant here is that the order of 11 March 1932, became ineffectual and unenforcible on account of Mt. Naraini having gone to and lived with her husband after the order. The learned Counsel for the applicant relies on Phul Kali V/s. Harnam 1888 A.W.N. 217. There a reference was made by the learned Sessions Judge as follows: I think the woman should have instituted formal proceedings under Oh. 36, Criminal P.C., that the Joint Magistrate should have heard what the husband had to say as to his willingness to keep the woman with him and should have considered any evidence produced by either party, and then should have decided whether the wife was entitled to receive any allowance from her husband. I think the Joint Magistrate was wrong in simply directing payment of arrears under the order of June, 1881. I recommend that his order be set aside.

(2.) On this Justice Straight ordered: I entirely agree with the learned Judge in the view which he takes of the Joint Magistrate's order, and concur in all that he has said upon the subject. The learned Joint Magistrate's order must be and is quashed.

(3.) It appears that all that was done in that case was that the joint Magistrate's order, which had been passed without giving any opportunity to the husband to show cause as to why he should not pay arrears, was set aside. In this case, a notice was issued to the husband and he was given full opportunity to show cause as to why he should not pay the maintenance which had been ordered against him. There is nothing in the order of Justice Straight referred to above to show if the order of maintenance was held to have become inoperative; if so on what grounds? The mere fact, that a woman goes to live with her husband for sometime, is not sufficient to make the order ineffectual though it may have the effect of suspending the order for the period the woman lives with her husband.