John Beaumont, Kt., C.J.
1. This is an application in revision asking us to set aside an order of the Sessions Judge of Broach refusing to interfere with an order of the trial Magistrate by which he declined to modify the order which he had made under Section 488 of the Criminal Procedure Code, 1898, and the question involves the construction of Section 489, Sub-section (2), of that Code.
2. The wife obtained an order under Section 488 for maintenance on October 6, 1941. The husband made an attempt subsequently to avoid the rigours of that order, which attempt was unsuccessful, and he thereupon filed a suit in the civil Court asking for an order for restitution of conjugal rights, and on October 27, 1942, he obtained such an order from the First Class Subordinate Judge of Broach. Directly he obtained a copy of that order, he applied to the Magistrate to revoke the order which he had made under Section 488, but the learned Magistrate declined to revoke the order, and his decision was upheld by the learned Sessions Judge.
3. Section 489, Sub-section (1), of the Criminal Procedure Code, enables a Magistrate, on a change in the circumstances of the party receiving an allowance under Section 488, or ordered to pay an allowance, to modify the order. Then, Sub-section (2) is in these terms :
Where it appears to the Magistrate that, in consequence of any decision of a competent civil Court, any order made under Section 488 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly
4. That section was added in consequence of decisions which had been given by certain High Courts. This High Court had held that the effect of the order of a civil Court granting restitution of conjugal rights would automatically put an end to an order made by the Magistrate under Section 488, a view which I should have thought was rather difficult to justify. But, at any rate, under Section 489, Sub-Section (2), the Magistrate has to consider whether in consequence of the civil Court's decision he ought to cancel or modify his order. I agree that where a civil Court has made a decree for restitution of conjugal rights, it has decided on the material before it that the wife ought to return to the husband, and if that is so, if she is in default in not returning, prima facie the order made under Section 488 ought to be cancelled. The Magistrate's discretion under that section must no doubt be exercised judicially, but, in my opinion, it is a real discretion. I think the present applicant is going too far in suggesting that the Magistrate is bound to cancel the order because a civil Court has made an order for restitution of conjugal rights. I think the Magistrate is entitled and indeed bound, to satisfy himself that the applicant is bona fide prepared to give effect to the order of the civil Court; that he is prepared to offer the wife a home which she ought to accept. The mere fact that the civil Court is satisfied on that point does not justify the Magistrate in surrendering his own discretion, he must be satisfied. Unless he is satisfied, the risk is run of a party having obtained a mere paper decree of a civil Court without any intention of giving effect to it.
5. We think, therefore, the order of the lower Court was right, and on the material before the Magistrate he was entitled to decline to revoke the order, there being no evidence before him as to what home the husband was prepared to offer the wife.
6. The application, therefore, must be rejected.
7. I agree.