Decided on July 30,1993

MANGAT RAM Appellant
Shano Devi Respondents


- (1.)ON an application filed by the respondents under Sec 433 Cr.P.C, the trial court of Chief Judicial Magistrate, Jammu, vide his order dated 23.12.1989, directed the payment of maintenance allowance to the respondents, the wife and child of the petitioner, @ Rs.300 per month (Rs.209 for wife and Rs.100 for child). Aggrieved by the said order the petitioner herein filed a revision petition before the Second Addl. Sessions Judge, Jammu, who, vide the order impugned in this petition, dismissed the same.
(2.)IT is submitted that the orders of the courts below being contrary to law and facts are required to be set aside, It is further submitted that during the pendency of the maintenance proceedings, a decree u/s 9 of the Hindu Marriage Act, was passed on the basis of a compromise between the husband and wife, on 28.9.1988, It is contended that as a consequence of the decree for restitution of conjugal rights, the respondent is alleged to have forgot and swept the bitterness of differences and the cause of action, if any, against the petitioner came to an end. The trial court committed a mistake of law by not considering the fact of the decree of restitution of conjugal rights and the revisional court below returned a finding on this behalf contrary to the settled law. It is contended that the decree of restitution of conjugal rights was acted upon and respondent No.1 started living with the petitioner without withdrawing the proceedings under Sec. 488 Cr. P. C. It is submitted that the respondent -child is also not entitled to the maintenance as she had been taken by the wife without the consent of the petitioner.
(3.)I have heard learned counsel for the petitioner and perused the record. No one has appeared for the respondents despite service.
From the record it appears that the trial court had not, in fact specifically considered the effect of decree for restitution of conjugal rights despite the fact that the factum of passing of the said decree had been brought to its notice. The respondent had also admitted in the statement about the passing of the decree and her living with the, petitioner thereafter. However, the record of proceedings under the Hindu Marriage Act reveals that the petition filed by the petitioner for restitution of conjugal rights was disposed of by holding, "In view of the statements of the parties the petition under Sec. 9 of the Hindu Marriage Act is decreed in accordance with the terms and conditions agreed to between the parties". The respondent in her statement recorded; on 28.9.1988 had submitted that if the petitioner herein assures not to Kill her by sprinkling kerosene oil, pays her Rs. 400 per month as maintenance, does not beat her and the child and permits her to visit her parents, she had no objection to the restitution of conjugal rights. She also agreed to withdraw the cases filed by her under Sections 107 and 488 Cr. P.C. The petitioner herein had also assured the respondent of fulfilling the conditions specified by her.

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