Madan Mohan Maity vs Rita Rani Maity and Others

J. Nag, J.—This Rule is directed against an order passed by the Subdivi-atonal Judicial Magistrate, Tarnluk, namely, order N0. 12 qutiea 23.12.80 and also an. subsequent orders passed by the learned Magistrate, do tar as the order No. 12 is concerned, that relates to an application which was hide by the opp. party, was with the prayer for maintenance 01 Its can per month as awarded by the learned magistrate for the person 1.1.80 to 22.12.80, the total being its. Rs. 1173.33p. The Court issued a notice on the petitioner to deposit the said sum in Court by 18.2.81. On the last date,-that is, on 1.4.51 the warrant of arrest which was issued by the learned Magistrate or not complying with the notice regarding deposit of the said sum was sought to be stayed by the teamed advocate appearing oh behalf of the petitioner on the ground that the revision application has been hied before the High Course. The teamed Magistrate according directed the U.C. to enquire '' wnemer any stay order has been granted by the High Court and, if not, to execute the warrant of arrest by 18.6 81. by order was granted by this Court on an application made on behalf of the petitioner husband on 28.4.81 and an as interim stay of execution of warrant of arrest was granted. That matter came up for hearing in presence of both sides. The only important point that was urged before me by the learned advocate for the petitioner is that the husband/petitioner had obtained a decree for restitution of conjugal right from the civil court in Midnapore, in view of that decree, according to the submission of the learned advocate for the petitioner, the order passed by the learned Magistrate for maintenance u/s 125 Criminal Procedure Code for a sum of Rs 100|- per month would be liable to be cancelled u/s 127(3) of the code of Criminal Procedure,

It is submitted by Mr. Roy that the husband had made offer to the write to come back and to live with high after the decree tor restitution of conjugal right was obtained by him but the wife did not come back and under these circumstances, she was not entitled to any maintenance from the husband. Accordingly, the maintenance order passed by the learned Magistraet in Misc. Case No. 45 of 1974 should be cancelled.

Both the husband and wife were present in Court. Questions were put to each of them by me. The husband again agreed to take back his wife but the wife objected to go back to the husband on two grounds. The first ground is that he is living with another woman whom he has apparently married and she has given birth to a child. Secondly, even if this woman is removed from the house she is apprehensive that in view of his previous conduct he will behave in a cruel manner and thus her life will be jeopardized. She has no faith in his assurances that he will be a good husband from henceforth. Both the grounds are substantial grounds for refusal of the wife to stay with her husband. Accordingly I heard the present Rule on merits.

In view of what has been stated earlier the only important point that has been raised is regarding the decree passed by the civil court for restitution of conjugal right. Does it or does it not cancel the order for maintenance passed by the learned Magistrate?

In this connection, several cases have been cited by the learned advocate ask me opp. party and 1 shall refer to some of them. in the case of Kunu Balauusi v. Nacnn Cnandra Das, reported in AIR 1975 Cal 108, Guha, J. in interpreting proviso to section 488(3) and proviso to section 489(2), held that even where the husband obtained a decree for restitution of conjugal right against the second wile in whose favour a prior order for maintenance had been passed u/s 488 Cr. P. C. and the husband was living with the first wife that would be a just ground for the second wife to refuse to live with him even if he made an offer to the second wife inviting her to live with him at the same house with the first wife. The Magistrate need not cancel the order for maintenance because the civil court has passed a decree for restitution of conjugal rights. The other case cited is reported in Shashanka Sekhar Nayak Vs. Aloka Rani Nayak, which is a single Bench decision by R. N. Dutta, J. A point came up before His Lordship as to whether a Magistrate is bound to set aside the order of maintenance passed u/s 488 Cr. P.C. in view of the fact that civil court, passed a decree in favour of the wife, It is replied in the negative. It can only be cancelled after the decree for restitution of conjugal rights is obtained if the Magistrate is satisfied that the husband is bonafide prepared to give effect to the decree that is, he is prepared to offer the wife a home, which she ought to accent. The mere fact that the civil court is satisfied on that point will not justify the Magistrate in surrendering his own discretion. Delivering the judgment R. N, Dutta, J. relied upon several other cases, namely, Kuntibala v. Nayak v (J.L.J. 119 and A.I.K. 1944 Bom. 11 this decision is supported by a decision of the Supreme. Court reported in 1981 Cri.L.J. 1430. It has been laid down therein that where the wife has a reasonable apprehension arising from the conduct of the husband that she is likely to be physically harmed such an apprehension also would be mainfestly a reasonable justification for the wife''s refusal to live with her husband, However his finding is an obiter but than the High Court is bound by it,

As 1 have already stated, the wife has reasonable apprehension in her mind that if she went back to her husband she would be assaulted by him or cruel treatment would be meted out to her. Apart from this, the husband is living with another woman. That is inconsistent with her dignity as a wife and, therefore, she cannot go back to him. Under these circumstances, I think this is a good ground for her refusal to live with her husband in spite of the fact that the husband has obtained a decree for restitution of conjugal rights in a civil court. I must hold in this case that the decree obtained by him is merely a ruse to avoid the consequences of an order of maintenance made u/s 125 of the Code of Criminal Procedure. In the circumstances, the order passed by the learned Magistrate is upheld and the Rule is discharged. Interim order, if any, stands vacated. Let the records go down immediately.