B.P. Beri, C.J.
1. This is a dispute between a husband and his wife arising out of a proceeding under Section 488, Criminal Procedure Code.
2. The controversy has had a chequered career. The wife made an application under Section 488. Criminal Procedure Code, on October 22, 1966, before the City Magistrate, Jaipur, on the ground that the husband was refusing to maintain her. The learned City Magistrate recorded some evidence relating to the question of jurisdiction but eventually, he decided it in favour of the wife and awarded her a sum of Rs. 100/- per month by way of maintenance. The husband was aggrieved. He moved a revision application and the learned Additional Sessions Judge No. 2, Jaipur City, by his order dated July 5, 1971, recommended to the High Court that the order be set aside, because the wife had not led any evidence to substantiate her claim for main- tenance and ell the evidence that had been led was with regard to the question of jurisdiction. The matter reached this Court and the learned Judge of this Court, by his order dated November 22, 1971, accepted the reference and directed the learned Magistrate to record the evidence of the parties on merits and decide the case in accordance with law.
3. While this controversy relating to maintenance was afoot in the Criminal Court, the husband instituted proceedings for the restitution of conjugal rights before the learned District Judge, Jaipur City. Therein, the wife moved an application for grant of maintenance of alimony pendente lite. The fate of that .application was against the wife, By this order dated August 16, 1972. the learned district Judge disallowed the application for alimony pendente lite and granted a decree for restitution of conjugal rights to the husband, Dissatisfied, the wife travelled to this Court and, by a judgment of this Court dated March 28, 1973, her appeal was dismissed. This fact is not disputed by the learned Counsel for the wife and the certified copy has been produced before this Court by the learned Counsel for the husband.
4. On December 21. 1972, however, the learned Magistrate without complying with the order of this Court and recording evidence of the wife, as he Was directed to do, dismissed the application under Section 488, Criminal P. C. which the wife had made, on the ground that a decree for restitution of conjugal rights had been passed in favour of the husband and, therefore, the wife could not be heard to contend that he (husband) was refusing to maintain her.
5. Learned Counsel for the wife urges that mere passing of a decree for restitution of conjugal rights is not enough to drive her out of claim for maintenance under Section 488, Criminal Procedure Code and he strongly relied on a decision of this Court in Jhanwarlal v. State of Rajasthan, 1969 Raj LW 4 : (1969 Cri LJ 306), Mehta, J.. who decided this case, observed that mere passing of decree for restitution of conjugal right by Civil Court could not be sufficient to cancel an order of maintenance and the Magistrate was to see and examine the bona fides of the husband in obtaining the decree for restitution of conjugal rights. The case which came before this Court was where maintenance allowance had already been granted and the decree for restitution of conjugal rights followed. The situation of this case before me is different. Here the wife's maintenance allowance which had been granted to her, had been cancelled on the ground that no evidence was led by her and before the Magistrate proceeded to take evidence the Civil Court namely, the learned District Judge, Jaipur City had already passed a decree for restitution of conjugal rights on August 16, 1972.
6. Section 488, Criminal Procedure Code, provides that if any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child, any of the Magistrates named therein may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child. The proviso to Sub-section (3) of Section 488, Criminal Procedure Code lays down:
Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her. and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
What could possibly be a just ground for a wife to refuse to live with her husband would ordinarily also provide an answer to the suit for restitution of conjugal rights. Where a civil court, after considering the plea raised by the wife as against demand of the husband for restoring to him his conjugal rights came to the conclusion that the wife must render society to her husband as is expected by law, then the proviso to Sub-section (3) of Section 488, Criminal P. C. seems to come into operation. Right up to this Court it has been considered and found that the husband is anxious for his conjugal rights and the wife has been resisting the request. Can it be said that the husband was refusing to maintain the wife in these circumstances? Reference in this connection may be made to Mohd. Siddiq v. Mt. Zubeda Khatoon : AIR1952All616 where the learned Judge observed that 'the Magistrate has a discretion under the section to pass an order for maintenance but that discretion must be exercised upon judicial principles and it is not in accordance with sound judicial principles to compel a husband to maintain a wife who contumaciously refuses to obey this order of a Civil Court directing her to live with her husband. The decision in a suit against the wife for restitution of conjugal rights is equivalent to a decision by a competent Civil Court that the wife had no sufficient reason for refusing to live with her husband and the Criminal Court cannot inquire into any allegations of failure or neglect to maintain prior to such decision.' I am in respectful agreement with this proposition.
7. The case set out by the husband in the suit for restitution of conjugal rights was that he made several at- tempts to persuade his wife to live with him but she refused to do so. It is a case of the wife's refusal to live with her husband rather than husband's refusal to live with his wife.
8. There is thus no force in this revision application which is hereby dismissed.