M.C. Desai, J.
1. No body appears t0 oppose this reference; Sri J. Chatterjee appearing for the State supports it. There is no controversy about the facts of the case. The applicant is the husband of the opposite party. In 1954 the opposite party applied for maintenance allowance under Section 488(1), Cr.P.C. and the Sub-Divisional Magistrate on September 29, 1955 passed an order, granting her maintenance allowance of Rs. 40/- per month. Subsequently she instituted a civil suit for past maintenance and the applicant instituted another civil suit for restitution of conjugal rights. On 1.5.1958 the civil court decreed the applicant's suit, and dismissed the opposite party's suit, holding that the apposite party herself had deserted the applicant in August 1954 without any reasonable cause and that consequently she was not entitled to any maintenance from him.
On 2.1.1959 despite the result of the two civil suits, and concealing it from the Sub-Divisional Magistrate, the opposite party applied to Item under Section 488(3) for enforcement of the Order passed by him under Sub-section (1). On 27.6.1959 the applicant applied to him for an order under Section 489(2) cancelling his previous order passed under Sub-section (1). The Sub-Divisional Magistrate held that he had discretion in the matter and cancelled the order passed under Sub-section (1) with effect from 2.1.1959, the date of opposite party's application and proceeded to enforce it in respect of the prior period. This reference has been made by the Sessions Judge with the recommendation that the maintenance order passed under Sub-section (1) should be cancelled with complete retrospective-effect.
2. Under Section 489(2) it was the duty of the Sub-Divisional Magistrate to cancel or vary toe order made by him under Sub-section (1) if the cancellation or variation became necessary in consequence of the decision of the civil court. According to the decision of the civil court the opposite party was not entitled to any maintenance allowance because she herself was a deserter and there was no neglect or refusal on the applicant's part to maintain her. It became necessary for the Sub-Divisional Magistrate to cancel or vary the order made under Sub-section (1) in consequence of this decision; it is evident that he was bound to cancel or vary it so as to bring it in conformity with the decision of the civil court. He was bound to give as much effect to the decision by cancelling or varying it as was possible in (the circumstances of the case. Since according to the decision the opposite party was not entitled to any maintenance allowance from the applicant, the Sub-Divisional Magistrate wag bound to cancel the order made under Sub-section (1) with complete retrospective-effect, i.e. with effect from the date On which it was made and not with effect from any subsequent date, such its 2.1.1959.
As according to the decision the opposite party was not entitled to any maintenance allowance from the applicant, no order granting her maintenance allowance for any period could be said to be in conformity with it. She was not entitled on 29.9.1955 to any maintenance allowance and the Sub-Divisional Magistrate's duty was to cancel the Order made under, Sub-section (1) with effect from 29.9.1955; he had absolutely no discretion in this respect. By cancelling it with effect from 2.1.1959 he has allowed maintenance allowance to the opposite party for the period 29.9.1955 to 2.1.1959 which is quite inconsistent with the decree passed by the civil court and he had no discretion to do so.
3. Under Section 488(5) an order made under Sub-section (1) is required to be cancelled by the Sub-Divisional Magistrate on being satisfied that the wife was living in adultery or was Without sufficient reason refusing to live with her husband or was living separately by mutual consent. In some cases it has been held that an order made under Sub-section (1) can be cancelled under Sub-section (5) prospectively and not retrospectively. With great respect I do not agree. There is nothing in Sub-section (5) to suggest that the Sub-Divisional Magistrate has no power to cancel the order retrospectively. The sub-section simply empowers him to cancel the order, obviously leaving it at his discretion to cancel it retrospectively or prospectively in accordance with the justice of the case. There is no reason why he should not cancel it retrospectively with effect from the date on which the wife started living in adultery Or unreasonably refused to live with her husband or started living separately by mutual consent.
Under Sub-section (4), no wife is entitled to receive maintenance allowance (under Section 488) if she is living in adultery or if without sufficient reason refuses to live with her husband or if she is living separately by mutual consent. Thus the law is that if a wife is living in adultery she is disentitled to any maintenance allowance and it follows that when a Magistrate cancels an order passed under Sub-section (1) On the ground that the wife is living in adultery etc. he must cancel it with effect from the date on which she came (disputed). It would be wrong on his part to give her maintenance allowance for any period after she started living in adultery etc, because that would amount to his giving her maintenance allowance in spite of her being disentitled to it.
I am, therefore, of the opinion that when a Magistrate cancels under Sub-section (5) an order made under Sub-section (1), he has jurisdiction to cancel it with retrospective effect; he may not have jurisdiction to cancel it with effect from the date on which it was passed but he has certainly jurisdiction to cancel it With effect from the date of which the wife became disentitled to the maintenance allowance by virtue of the provision of Sub-section (4). I go further and say that it is his duty to cancel it with effect from that date unless there are special circumstances. If a Magistrate cancelling under Section 489(2) an order made under Sub-section (1) is governed by the same considerations by which he would be governed if acting under Sub-section (5) he must cancel the Order with as much retrospective effect as the justice requires. Actually I find that the language used in Section 489(2) is different from that used in Sub-section (5). In the former provision the Magistrate has to cancel or vary the order in order to bring it in conformity with the decision of the civil court and to what extent he can act retrospectively would depend upon the decision of the civil court. If the civil court requires him to act retrospectively with effect from the date of the maintenance order, he would be bound to do so.
4. I accept the reference set aside the order passed by the Sub-Divisional Magistrate and cancel the order passed by him under Section 488(1) with effect from 29.9.1955 and dismiss the opposite party's application for enforcement of it. If any warrant has been issued for recovery of any maintenance allowance it shall be withdrawn. The applicant would not be entitled to refund of the maintenance allowance paid by, or realized from him in the past.