JUDGMENT Lodge, J, 1. This matter arises out of an order passed under sec. 488 of the Criminal Procedure Code. The present petitioner, Tarak Nath Dhar married the Opposite Party Sm. Sneharani Dhar in the year 1939. Thereafter, in the year 1942, the Opposite Party ceased to live with her husband and on the 3rd September, 1942, she presented a petition praying for maintenance under sec. 488 of the Criminal Procedure Code before the Sub-divisional Magistrate, Alipore. The application was opposed. Her assertions that she had been ill-treated by her husband and the other members of his family were contested. After a full hearing the learned Magistrate accepted the Opposite Party's story of ill-treatment and held that she had sufficient, reasons for refusing to live with her husband and he passed an order directing her husband to pay Rs. 20 per month as maintenance. An application to the Sessions Judge by the present petitioner was rejected. Thereafter the present petitioner filed a suit for restitution of conjugal rights in the Court of the 2nd Munsif at Howrah. The Opposite Party entered appearance and filed a written statement but did not appear at the time of the hearing of the suit and the suit was decreed ex parte. Thereafter on the 5th January, 1946, the present petitioner applied before an Honorary Magistrate (Mr. G.N. Mookerjee, the learned Magistrate who passed the original order under sec. 488 Cr.P.C.) for an order that the order of maintenance passed under sec. 488 of the Criminal Procedure Code be cancelled in view of the decision in the civil suit. On this application the learned Magistrate passed the following order.-- The petition is rejected in view- of the fact that the matter has already been decided by the Court long ago. An application in revision was rejected by the Additional Sessions Judge, 24-Parganas. Hence this application. 2. The Opposite Party has been living with her father at Nasik and other distant parts of India after obtaining the order under sec. 488 Cr.P.C. but apparently she had knowledge of the suit for restitution of the conjugal rights and filed a written statement in that suit alleging that she had been treated with cruelty and that she had sufficient reason for refusing to live with her husband. When the suit came on for hearing she did not appear and contest, and the suit was decreed ex parte. 3. When the suit came on for hearing she did not appear and contest, and the suit was decreed ex parte. 3. In my opinion the legal effect of this is the same as if she had adduced evidence in support of her defence and that evidence had been rejected by the Court and her defence had been disbelieved. In other words in my opinion the decision in the suit for restitution of conjugal rights is equivalent to a decision by a competent Civil Court that the Opposite Party had no sufficient reason for refusing to live with her husband. It is not suggested that other circumstances have arisen since that decree was made which would entitle a Criminal Court to come to any other conclusion and it is not suggested that the decree of the Civil Court was obtained without the Defendant in that suit having ample opportunity of contesting the suit if she wanted do so. It is clear from the provisions of sec. 489 (2) of the Criminal Procedure Code that it was the duty of the learned Honorary Magistrate to consider the effect of this Civil Court decree and to apply his mind to the question whether in view of the decree the order for maintenance should be cancelled or varied. The learned Magistrate refused to do so and by such refusal obviously committed an error of law. The order of the learned Magistrate cannot be upheld and must be set aside. The only question is whether. I should remand this application to be heard by the learned Magistrate to be disposed of according to law or whether I should pass an order in the matter without further remand. 4. As the material facts are not disputed it seems to me undesirable to refer the matter back to the learned Magistrate. In the view I have taken of the admitted facts it must be held that there is now a binding decision to the effect that the Respondent is refusing without sufficient reason to live with her husband. Such being the case under sec. 488 Cl. 5 of the Criminal Procedure Code it was the duty of the Magistrate to cancel the order of maintenance. It seems to me desirable that I should therefore order the cancellation of the original order. Such being the case under sec. 488 Cl. 5 of the Criminal Procedure Code it was the duty of the Magistrate to cancel the order of maintenance. It seems to me desirable that I should therefore order the cancellation of the original order. The Rule is accordingly made absolute, the order of the learned Magistrate is set aside and an order is passed under Clause 5 of sec. 488of the Criminal Procedure Code cancelling the original order of maintenance passed under sec. 488 Cr.P.C.