1. This is an application in revision by one Sarda Prasad against an order of a Magistrate directing payment of Rs. 8 per month as maintenance to the opposite party, Mt. Piari. This order was confirmed by the learned Sessions Judge. Although the order of the Special Magistrate, First Glass, directed the petitioner to pay Rs. 8 per month to the applicant, it seems that the learned Sessions Judge in revision considered that that order was an order that the amount should be sent to the City Magistrate of Bareilly by money order. Why, I am unable to understand. The fact that the woman's father is the servant of the City Magistrate is no reason for considering that an order for payment of maintenance must mean that the amount should be sent through the City Magistrate. It seems to ma perfectly clear that the proceedings that were taken in the criminal Courts at Bareilly were mala fide proceedings, taken for the purpose of nullifying any order that a civil Court may pass in a pending suit in the Allahabad civil Courts. On 12th June 1931 a civil suit was instituted by Sarda against his wife, Mt. Paigi, for restitution of conjugal rights. This lady never took the trouble of defending the suit, but instead of defending the suit took proceedings on 6th July 1931 under Chap. 36, Criminal P.C. The application was originally filed in the Court of the City Magistrate, who is the employer of the petitioner's father,, bat the City Magistrate very properly transferred it to a Special Magistrate of: the First Class.
2. I have read the judgment of the learned-Special Magistrate. It seems to me that elaborate arguments were addressed to him. English cases were cited and the learned Magistrate took great pains in, deciding issue 1, which he has decided cerrectly, that he has jurisdiction to try the case. As regards the second point whether the civil Court decree had any bearing or not it seems to me that the learned Magistrate has gone wrong. The civil Court decree, although ex parte, cannot be ignored by the criminal Court. The ruling of Boys, J., in Rajpatti v. Emperor A.I.R. 1924 All. 784, referred to by the learned' Magistrate, clearly has no application, whatsoever to the facts of this case. In that case a civil Court decree for restitution of conjugal rights had been passed and the wife had obeyed the decree and 13 months afterwards by reason of the husband's ill-treatment had left the husband's house and under those circumstances it was not considered incompetent for the criminal Court to take action and pass orders under Section 488, Criminal P.C.
3. In this case it seems to me that this application of Mt. Piari was pat in deliberately for the purpose of ignoring any decree that the civil Court may pass. It is clear to me that under the Criminal Procedure Code it was not the intention of the legislature that parties who wanted relief under Chap. 36 should ignore all decrees that may be passed by a civil Court. In fact Clause 2, Section 489, makes it clear that if in consequence of any decision of a competent civil Court any order under Section 488 requires to be amended the Court was to amend it or cancel the order. This, to my mind, shows clearly that the legislature never contemplated that a criminal Court should ignore a civil Court decree. It is immaterial whether a civil Court decree was passed ex parte or after contest. It may be that a party may consider that his or her statement is so ridiculous that no civil Court will pay any attention. There are well known rules which prevent a civil Court from ordering restitution of conjugal rights against a wife where the wife can show reasons that such a decree should not be passed. In this case it seems to me that the proceedings that were taken were not bona fide. (After discussing the evidence, his Lordship proceeded.) I am not satisfied that this is a case in which any order under Section 488, Criminal P.C., should have been passed. I set aside the order of the Special Magistrate, First Class, dated 16th June 1931 directing payment of a sum of Rs. 8 per month to the complainant Mt. Piari. I make no order as to costs.