1. The plaintiff sued as against his wife, the first defendant, for restitution of conjugal rights and as against defendants 2 to 4, who are respectively his wife's parents and brother, for an injunction restraining them from in any manner interfering with him and his wife and from keeping his wife away from him without his consent. The learned City Civil Judge has dismissed the suit upon a finding upon what may be termed a preliminary issue, the second.
2. The plaint was filed on the 5th of August, 1927, and it appeal's that on the 31st of May of that year a consent order was passed by the Presidency Magistrate, Georgetown, between the same parties under Section 488 of the Code of Criminal Procedure in these terms: 'By consent of both parties, sum of Rs. 6 per mensem is ordered for the maintenance of the petitioner by her husband, the counter-petitioner.' The learned City Civil Judge is of opinion that, as the plaintiff has expressly consented to such an order, it operates as a bar to his suit for restitution of conjugal rights. Now it is not contended that where an order is passed under Section 488 after consent, it operates as such a bar. In fact there is now statutory recognition of the independence of the Civil Court in this matter by the enactment of Sub-section (2) of Section 489 of the Criminal Procedure Code, the Magistrate being required to modify his order in consequence of any decision of a competent Civil Court. Does the circumstance that the order in this instance was a consent order make any difference? We think that it clearly makes no difference, unless it appears that something more: than a consent to the order of the Magistrate was involved. In considering what the consequence of consent to such an order must be, we must consider the scope of the order which was consented to, and there is no reason to suppose that such an order, even when passed after consent, would have an effect in excess of an order passed without such consent. For instance, we cannot suppose that the provisions of Section 488 (4) and (5) which enable a Magistrate to cancel his order, or of Section 489 (1) which enable him on proof of a change in the husband's circumstances to modify it, would be affected by the fact that the original order was not passed on an adjudication but by consent. Now would the fact of consent exclude the operation of Sub-section (2) of Section 489, already alluded to. Unless, therefore, it were expressed in the consent given that the consenting party agreed that in all circumstances the wife should live apart from him and should be entitled to the maintenance agreed upon, we are clearly of the opinion that it cannot operate so as to extend the scope of the order or to restrict the jurisdiction of the Civil Court to supersede it. We have been asked to frame an issue inquiring whether in the circumstances of the present case the consent given was not merely to the order in the terms in which it is drafted but was more unqualified and in effect a consent that the wife should live apart and should receive maintenance without such limitations as the order necessarily imposes. But we cannot find any such position taken up in the first defendant's written statement as would warrant such a course. In fact in paragraph 8 it is clearly said that the plaintiff agreed to a consent order on the maintenance application if the hurt case which was filed at the same time by the first defendant was compounded, that the hurt case was accordingly compounded and a consent order passed, and paragraph 12 carries the matter no further because it only expresses the contention that the suit is not sustainable until the consent order of maintenance is set aside. We think, therefore, that the order carrying, as it must, the ordinary consequences of an order passed under Section 488 of the Code of Criminal Procedure is no bar to the plaintiff's claim and we must accordingly answer issue No. 2 by saying that the suit is maintainable.
3. We accordingly set aside the decree of the Lower Court and remand the suit for trial upon the remaining issues. Costs will abide the event. The appellant will be entitled to a refund of the Court-fees paid on the Memorandum of Appeal.