PATEL BHAGUBHAI RANCHHODAS Vs. BAI ARVINDA

JUDGEMENT

(1.) This rule was issued on the District Magistrate of 24-Parganas and on the opposite party to show cause why an order for maintenance obtained at the instance of the opposite party should not be set aside in circumstances to be detailed hereafter. It appears that the opposite party Bai Arvinda was married to the petitioner in the year 1924 at Ahmedabad. Both the husband and the wife were natives of Bombay. After the marriage they lived together, it is said, till 1927 when the opposite party, misled by her paternal relations, elected to live with them and refused to join her husband in spite of several serious attempts made by him in that behalf. On 16 August 1932 the petitioner filed a suit for restitution of conjugal rights. On 1st March 1933 the wife Bai Arvinda put in a petition before the Police Magistrate of Alipore for maintenance under Section 488, Criminal P.C. On 5 August of the same year that petition was allowed and the petitioner before me was directed to pay Rs. 30 as maintenance to the opposite party. The civil suit for restitution was, however, decreed in favour of the petitioner on 31 July 1934. That fact was brought to the notice of the Police Magistrate of Alipore on 3 November 1934 by the petitioner. On 3 December 1934 the Magistrate in the presence of and after hearing both the parties passed the following order: A petition filed by defendant saying he has obtained decree for restitution of conjugal rights against the petitioner. The judgment is dated 31 July 1934. So up to 30 July 1934 petitioner is to have maintenance order executed.

(2.) In other words, the effect of the Magistrate's order was that after 30 July 1934 the wife was to have no further maintenance. It appears that the decree for restitution of conjugal rights was set aside by the District Judge of Ahmedabad on 10 March 1936, and it is said that an appeal is pending before the Bombay High Court against the said decision. On 17th April 1936 the wife informed the Police Magistrate of Alipore of the decree passed by the District Judge of Ahmedabad setting aside the decree for restitution of conjugal rights. The Police Magistrate on 27 July 1936 cancelled his previous order rescinding the order for maintenance and restored the original order for maintenance on 5 August 1933. The petitioner being aggrieved by this order has obtained the present rule.

(3.) It is argued by Mr. Mukherjee on behalf of the petitioner that the Police Magistrate had no jurisdiction to restore to previous order seeing that it had the effect of reviving the previous order which had already been cancelled and he relies on the provisions of Section 369, Criminal P.C. In my opinion Section 369, does not apply to the present case in view of the express provisions of Secs.488 and 489, Criminal P.C.S. 489 by Clause (2) suggests that it is open to the Magistrate either to alter or to vary the order for maintenance if circumstances so require. It appears that this order cancelling the previous order for maintenance was really obtained by fraud upon the Magistrate in his not being apprised on that date that the decree for restitution of conjugal rights was liable to be set aside by the District Judge of Ahmedabad on appeal which was then pending before him and an order obtained by fraud must be treated as having no legal effect. Indeed the Magistrate says that he would not have cancelled the maintenance order on 16 October 1935 if he had known that an appeal had been filed against the decree for restitution of conjugal rights. Any order obtained by fraud practised on the Court is, in my opinion, one which is to be treated as a nullity and the result is that the previous order for maintenance stands. 8. 489 (2) really suggests that it is open to the Magistrate to vary the order of maintenance or to alter it if circumstances so require.