SWARAJYAWATI Vs. L B MUNNALAL
HIGH COURT OF ANDHRA PRADESH
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(1.) The wife was awarded maintenance under section 488,
Criminal Procedure Code. Subsequently the proceedings under the Hindu Marriage
Act for restitution of conjugal rights were
initiated by the husband in which the
wife was awarded interim maintenance
under section 24 of the Act. Having
regard to the said order directing the
payment of interim maintenance the
respondent filed a petition for cancellation
of the maintenance order made under
section 488(1), Criminal Procedure Code.
The learned Magistrate has allowed that
petition. On a revision petition filed by
the wife before the Chief City Magistrate,
Hyderabad he has made a reference to
this Court to set aside the order of cancellation made by the Magistrate.
(2.) When it is not disputed that the petition for restitution of conjugal rights filed
under the Hindu Marriage Act is still
pending and the mainteance that has been
awarded to the wife is only interim maintenance under section 24, it cannot be
postulated that the husband would necessarily get a degree for restitution of
conjugal rights nor can it be said that the
wife would be awarded maintenance
permanently. In fact in those proceedings no maintenance as such would be
awarded for a period subsequent to
the disposal of the petition, the maintenance ordered under section 24 of the
Hindu Marriage Act being only interim
maintenance. An ordet under section
488 (1), Criminal Procedure Code cannot
be cancelled merely because interim
maintenance has been awarded. Under
sub-section (5), of section 488 only on
proof that any wife in whose favour an
order has been made under this section
is living in adultery, or that without
sufficient reason she refuses to live with
her husband, or that they are living
separately by mutual consent the Magistrate may cancel the order. Further
under section 489 (2), Criminal Procedure]
Code, only where it appears to the Magisrate
that in consequence of any decision
of a competent civil Court, an order
made under section 488 should be canceled or varied, he may cancel the order, or,
as the case may be, vary the same accordingly. But a direction to pay interim
maintenance pending disposal of a petition for restitution of conjugal rights filed
by the husband is not a circumstance
warranting cancellation of the order.
That must necessarily await the final
disposal of the petition for restitution of
conjugal rights. The reference is, therefore, accepted.
(3.) The revision petition is allowed and
the order directing payment of maintenance to the wife originally passed is
restored and the subsequent order cancelling the maintenance awarded is set aside.
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