Decided on April 06,1971

L.B.MUNNALAL Respondents


- (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. Reference accepted. Revision allowed.;

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