- (1.) RAJESHWAR Singh, J. This is an Appeal against the judgment of the Family Court.
(2.) THE facts that appear from the judgment and which have not been challenged are that the wife applied under Section 125 of the Cr. P. C. for recovery of arrears of maintenance granted to her by exparte order dated 24-6-85 THE husband moved an application for setting aside that exparte order and the application was dismissed. THEn he moved another application on 15-9-86 for setting aside order of dismissal of his earlier application for setting aside exparte order. That application was also dismissed holding that it was not maintainable. Thereafter the husband moved another application dated 8-5-87 there in he said among other things that in the meantime he had obtained an ex parte decree for restitution of conjugal rights against wife. Though this application he prayed that the order passed for maintenanae in favour of the wife should be cancelled. Such an application was maintainable under Section 12 of the Cr. P. C. This provision says that there it appears to the Magistrate that in consequence of any decision of a competent civil court any order made under Section 125, Cr. P. C. should be cancelled or varied. It shall cancel the order or very the same as may be justified. Since the husband had obtained a decree from a competent civil court, such an application was maintainable. It should have been disposed of after giving opportunity to the parties of being heard. Such an application could also be maintained under Section 125 of the Cr. P. C. which says that on proof that a wife refuses to live with her husband without sufficient reason the Magistrate shall cancel the order. The learned Magistrate did not register this application separately and did not apply his mind to the question involved. He was obsessed by the fact that previously the husband has been asking for setting aside ex parte order and getting execution stayed and he thought that the husband had again moved a similar application ; but it was not so. The husband was not asking for staying execution or setting aside ex-parte order. What he was saying was that the order of maintenance should be cancelled because a civil court decree for restitution of conjugal rights had stepped in. Vie Magistrate dismissed the application of the husband by merely saying that a mere decree for restitution of conjugal rights is no bar to the claim of maintenance. For this view he relied on the case of K. Narayan Rao v. Bhagya Lakshmi, 1984 Cr. LJ 276 decided by Karnataka High Court. The extract of the head-note of this case may be reproduced below with advantage :- "the findings of civil courts is on such touching questions such as the husband, such as the wife withdrawing from the society of the husband, desertion on her part or her leading an adulterous life etc. are not binding on the Criminal Court. This is not to say that the criminal court should simply neglect the decree, if any, obtained by the husband in the matrimonial court. The court dealing with the maintenance claim under Section 125 will have to carefully examine and take into consideration such decrees also, though, it is not bound by the findings. It may be difficult to give instance where such decrees or the observations made in such orders, touching questions relevant for consideration under Section 125 will be sufficient to negative the claim of the wife. All that can be said is that the Magistrate should not 'surrender his own discretion' simply because the husband was armed with a civil court decree for restitution of conjugal rights. "
(3.) THUS in this case the High Court merely said that the Magistrate should not surrender his own discretion and findings of a civil court were not binding on him. It further said that the Magistrate should carefully examine and take into consideration decree of the civil court. What the learned Family Court Judge has done in this case is that he did not consider any circumstances and did not give any finding. He rather merely said that a mere decree for restitution of conjugal rights is no bar to the claim of maintenance. This was not sufficient. In the case relied upon by the Family Court the order under Sec tion 125 was not varied, but it was done after consideration of the facts and after a finding that it did not appear to be the desire of the husband on pur poses to pursuade the wife to live with him. The following extracts from the head-note may again be quoted :- "though a concluded ex-parte decree is no such a valid decree binding the parties as a contested one, in the instant case it was held, that there were one or two features behind the ex-parte order which ought to be taken note of while examining the implication of that decree over the proceedings under Section 125, Cr. P. C. Salem the city in Tamil Nadu State, wherein the husband initiated the section of restitution of conjugal rights, was hundred of miles may from the place on Udupi Taluk of Karnataka stay where the wife used to live with her father and three minor children. In the circumstances, it was not possible for the wife, brought up in traditional surroundings to make arrangements to right the legal battle, even if she wanted to helpless, as she was, if she had suffered the ex-parte decree, that decree could not be accepted and providing proof of the husband's plea that 'without any sufficient reason, she refused to live with him' and, therefore, she was not entitled to claim maintenance. It was clear that the section was taken by the husband to strength on his defence against the wife's impending claim for maintenance. The desire did not appear to be to persuade her to live with him. ";