M. Srinivasan, C.J.
1. The respondents herein filed a petition under Section 125 of the Code of Criminal Procedure on 25.2.1993 on the file of the Additional Chief Judicial Magistrate, Hamirpur for maintenance. The first respondent is the wife of the petitioner and respondent Nos. 2 to 4 are the children born out of the wedlock. The allegation of the 1st respondent was that her husband, petitioner herein had neglected and refused to maintain the respondents without any lawful excuse despite having sufficient means of income, whereas according to her she had no source of income to maintain herself and the children. The Additional Chief Judicial Magistrate found that the 1st respondent had no valid excuse to be away from the husband and as such she is not entitled to maintenance from him. However, he proceeded to grant maintenance in favour of the three children @ Rs. 250/-per month. The petitioner did not challenge that order as he was willing to pay maintenance to the children. The first respondent challengd the order by filing Criminal Revision No. 1 of 1996 on the file of the Sessions Judge, Hamirpur. The Sessions Judge has reversed the order of the Additional Chief Judicial Magistrate in so far as it related to the maintenance claimed by me 1st respondent herein. Consequently, she directed the petitioner herein to pay a sum of Rs. 200/- per month by way of maintenance to the 1st respondent, from the date of the decision of the Trial Court i.e. 18.11.1995.
2. The aggrieved husband has preferred this revision petition during the pendency of the proceeding before the Additional Chief Judicial Magistrate. The petitioner herein had filed a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights on the file of the Senior Sub-Judge, Hamirpur. That proceeding was instituted on 17.4.1993 and after contest, it was disposed of on 30.6.1995. The Civil Court found that-the 1st respondent had no reasonable or just cause for withdrawing herself from the society of the petitioner herein. Consequently, the Senior Sub-Judge passed a decree for restitution of conjugal rights, as prayed for by the petitioner herein. Admittedly, that decree has become final as it has not been challenged by way of appeal by the 1st respondent. It is recorded in the judgment of the Civil Court in paragraph 8 that the 1st respondent had stated before the Court that she was ready to accompany the husband, but she contested the proceedings and a decree has been passed for restitution of conjugal rights.
3. In this revision petition, learned Counsel for the petitioner contends that once me Civil Court has gone into the matter and given findings that the 1st respondent had no reasonable or just cause for withdrawing herself from the society of the husband, then the Criminal Court cannot grant maintenance in her favour on the footing that the husband had neglected or refused to maintain her. The order of the Civil Court was marked as Ex. RX before the Additional Chief Judicial Magistrate. The Revisional Court while referring to the said order held that inspite of the order for restitution of conjugal rights, it is open to the Criminal Court to consider the claim of maintenance and grant the same. The Revisional Court has also taken into account a circumstance that maintenance was being paid by an order passed by the Army Authorities at a time, when me petitioner herein was serving in the Army on a representation made by the 1st respondent herein. It is not in dispute that the petitioner herein was making payments from 1989 by virtue of the said order of maintenance passed by the Army Authorities.
4. The contention of learned Counsel for the petitioner is that the order passed by the Civil Court having become final, the 1st respondent cannot claim maintenance under Section 125 of the Code of Criminal Procedure. It is also con tended by him that the factum of payment of maintenance when the petitioner was in the Army service will not enable the 1st respondent to continue the claim of maintenance under Section 125 of the Code of Criminal Procedure, inspite of there being an order for restitution of conjugal rights. In support of his contention, he has referred to certain authorities. On die other hand, learned Counsel for the respondent has contended that the mere fact that there is a decree for restitution of conjugal rights will not prevent the 1st respondent from claiming separate maintenance. He has referred to certain authorities in support of his contention. He has also made a reference to certain statement made in the course of evidence of one of the witnesses before the Civil Court to the effect that the petitioner is having some illicit relationship with some third party. Such contention is not available to the 1st respondent in this proceeding as even the Civil Court found that the same was not established at all. Neither there was any pleading in that proceeding nor is there any such pleading in the present proceeding. Reliance is also placed by learned Counsel of the respondents on the payment made by the husband from 1989 pursuant to the order of the Army authorities.
5. Insofar as the payment of maintenance made when the petitioner was in Army service is concerned, mat cannot give rise to a claim of maintenance by the 1st respondent. It is not open to her to claim maintenance under Section 125 of the Code of Criminal Procedure excepting on the proved fact that the petitioner herein has neglected or refused to maintain her. It is only when me Court is satisfied that mere is neglect or refusal to maintain on the part of the petitioner that maintenance can be granted under Section 125 of the Code of Criminal Procedure.
6. The view taken by different Courts on the question as to the effect of a decree for restitution of conjugal rights is not uniform. Before referring to that, it is necessary to point out the effect of the decree passed by a Civil Court in a matter over which it has competence.
7. In Captain Ratnesh Chander Kaushal v. Mrs. Veena Kaushal & Ors., AIR 1978 SC 1807, the Court said as follows :
'Broadly stated and as an abstract proposition, it is valid to assert, as Mr. Desai did, mat a final determination of a civil right by a Civil Court must prevail against a like decision by a Criminal Court.'
That proposition shall be kept in mind where an approach is made to the question on hand. Section 125 of the Code of Criminal Procedure begins with the words 'If any person having sufficient means neglects or refuses to maintain'. Hence, it is the duty of the Criminal Court to find out whether the person who is liable to maintain has sufficient means and has neglected or refused to maintain. Unless there is a finding that he has refused or neglected to maintain, there is no question of granting maintenance under that section.
8. Section 9 of the Hindu Marriage Act provides for restitution of conjugal rights. The opening words of the section are 'when either me husband or the wife has, without reasonable excuse, withdrawn from the society of the other, aggrieved party may apply.' When a Civil Court has considered the matter after contest by both the parties and come to a conclusion that wife has without reasonable excuse withdrawn from the society of the husband, it is not open to the Criminal Court to come to a conclusion that the husband has neglected or refused to maintain her. Once mere is a decree for restitution of conjugal rights, it is the duty of the wife to obey the same and she cannot refuse to abide by the same and make a complaint that the husband has refused to maintain her.
9. In Gopala Pillai v. Padmini Amma, 1978 KLT 485, a decree for restitution of conjugal rights was passed. Thereafter, the husband filed a petition for dissolution of marriage as the wife was not willing to abide by the decree for restitution of conjugal rights. That petition for dissolution of marriage was allowed and only thereafter the petition for maintenance under Section 125 of the Code of Criminal Procedure was filed by the wife. In such situation, the Court held that the order for restitution of conjugal rights was not a ground for the refusal of maintenance under Section 125 of the Code of Criminal Procedure.
10. In K. Narayan Rao v. Bhagyalakshmi, 1984 Cri. LJ 276, the Karnataka High Court had to consider a similar question. It was found on the facts of the case that the wife did not have sufficient opportunity to contest the proceeding for restitution of conjugal rights. She was living far away from the place where the petition was instituted. She did not have adequate means even to contest the proceeding. In such situation, the Court held that the husband obtaining an order of restitution of conjugal rights will not prevent the wife from instituting the proceeding under Section 125 of the Code of Criminal Procedure.
10. In Smt. Radha @ Billo v. Ram Ditta, 1984 Marriage Law Journal 392, the High Court of Punjab and Haryana held that a decree for restitution of conjugal rights obtained by the husband against the wife and the finding that the wife was living away from the husband without reasonable excuse was binding on the Criminal Court and that as the decree had become final, her claim for maintenance under Section 125 of the Code of Criminal Procedure was not sustainable.
11. In Girishbhai Babubhai Raja v. Hansaben Girishcliandra & Anr., 1986 (l) Gujarat Law Reporter 630, the learned Judge of the Gujarat High Court had after placing reliance on the judgment of the Supreme Court in Captain Ramesli Chander's case, AIR 1978 SC 1807, held that the decree passed by the Civil Court was binding on the Criminal Court and the same issue could not be tried once again by the Magistrate under Section 125 of the Code of Criminal Procedure. The Court held that in view of me decree for restitution of conjugal rights, the wife was not entitled to claim maintenance under me provisions of Criminal Procedure Code.
12. In Smt. Mahtab Begum v. Ansar Ahmad, 1986 (2) All. LJ 1096, the Allahabad High Court held mat the claim for maintenance under Section 125 of the Code of Criminal Procedure has for its premise neglect or refusal of the spouse to maintain her. Under the proviso to Sub-Section (2), if he offers to maintain his wife on condition of her living with him and she refuses to live with him, the 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. Thus, from the evidence, if the claim of the husband for restitution had succeeded, it was certainly binding on the wife and she was not entitled to claim maintenance under Section 125 of the Code of Criminal Procedure.
13. In Babulal v. Sunita, 1987 Cri. LJ 525, the learned Judge of the Madhya Pradesh High Court held that Section 125 of the Code of Criminal Procedure should be given liberal construction and in the absence of any statutory bar the wife's application cannot be rejected merely because the husband has obtained a decree for restitution of conjugal rights against her and she declines to comply with it. In the facts, it is found by the learned Judge that the decree for restitution of conjugal rights passed against the wife was obtained ex-parte and she could not contest the suit, as she was confined to bed and was hospitalised during that period. In such circumstances, the Court held that the ex-parte decree obtained by the husband should not be allowed to come in the way of the wife claiming maintenance.
14. In Mohd. Shakeel v. Smt. Shaeehna Parveen & Ors., 1987 Cri. LJ 1509, the Delhi High Court had to consider a similar case of claim for maintenance under Section 125 of the Code of Criminal Procedure, where a decree had been obtained for restitution of conjugal rights. But it is seen from the report that the judgment of the Civil Court granting restitution of conjugal rights was under appeal and the matter was at mat time pending. The Court said that unless and until the final verdict was given, the husband cannot deprive the wife of her maintenance as ordered by the lower Courts in that case. Hence, me ruling has no relevance in the present case.
15. In Maddina Subbamma v. Maddina Venkateswarlu & State, 1993(1)SLJ 92, a Single Judge of the Andhra Pradesh High Court held that a decree for restitution of conjugal rights is not an absolute bar to the consideration of a petition under Section 125 of the Criminal Procedure Code. Referring to certain rulings of other High Courts, the learned Judge held that though there was a decree for restitution of conjugal rights, the wife had justifiable grounds to stay away from the husband and in such circumstances, maintenance could be granted to her. It was found that on the facts that the wife had sufficient reasons to be away from the husband as there was no security to her life in the hands of the husband': The ruling depend upon the facts of the case.
16. On a consideration of the aforesaid rulings, I have no hesitation to hold that once a Civil Court has found in a contested proceeding on the basis of evidence that the wife had no just or reasonable cause to withdraw her society from the husband, she cannot claim maintenance under Section 125 of the Code of Criminal Procedure. It is not as if she had pleaded any subsequent event or circumstance, which justified her to stay away from her husband inspite of the decree for restitution of conjugal rights having been passed against her.
17. The provisions of Section 127(2) of the Code of Criminal Procedure also show mat the Magistrate is bound to give effect to an order of a competent Civil Court and vary or cancel the order for maintenance made under Section 125 of the Code of Criminal Procedure.
18. It follows that the order passed by the Sessions Judge in the revision petition granting maintenance to the 1st respondent is unsustainable and the said order is set aside. This revision petition is allowed accordingly. There will be no order as to costs.