Order.- Learned Sessions Judge of Palghat has made this reference and the point referred is that when a civil Court has passed a decree for maintenance, is it open to the wife to prosecute a petition for maintenance against the husband under section 488, Criminal Procedure Code. Courts have ruled that when once the civil Court has decided the question of maintenance, the magistrate cannot have jurisdiction under section 488, Criminal Procedure Code. But judicial opinion lis not uniform in this matter. The criminal Court no doubt, must respect la decree passed by the civil Court where in the matter before the criminal Court had come up for determination. But in a proceeding under section 488, the sole point to be considered is whether the husband has neglected or refused to maintain his wife and children. The mere passing of a decree by the civil Court from which no benefit has accrued to the wife, is no answer to a petition under section 488. Mere existence of the civil Court decree cannot therefore, be urged as a bar to the entertainment of an application under section 488. This is the view taken by a Division Bench of the Bombay High Court in In re Taralakshmi1. The Court held: "The mere existence of a decree of a civil Court directing a certain sum to be paid for maintenance does not outs the jurisdiction of a Magistrate in a proper case to make an order under section 488. Of course the existence of such a decree is relevant when the Magistrate is considering what form of order he should make under section 488 and the Magistrate should make it clear in his order that anything paid under the decree of the civil Court will be taken into account against anything which he may order to be paid." 2. The same view was taken by the Madras. High Court in an earlier case Kent v. Kent2. In that case, an order of the Probate, Divorce and Admiralty Division of the High Court of England was put forward in bar of the maintainability of a petition under section 488. Devadoss, J., observed: "The third contention raised by Mr. The same view was taken by the Madras. High Court in an earlier case Kent v. Kent2. In that case, an order of the Probate, Divorce and Admiralty Division of the High Court of England was put forward in bar of the maintainability of a petition under section 488. Devadoss, J., observed: "The third contention raised by Mr. Mockett is that there is an order of the Probate, Divorce and Admiralty Division of the High-Court in England whereby the petitioner is directed to pay his wife so much alimony per month, and it is seriously urged before me that this order is a bar to an application under section 488, Criminal Procedure Code. It is admitted that the wife finds it impossible to execute the order for alimony against the petitioner who is a planter in the Mysore State. Whether the order is executable or not is immaterial for the present purpose. The section gives jurisdiction to the Magistrate to award maintenance if he is satisfied that a person has neglected or refused to maintain his wife or child. The existence of an order for alimony is not sufficient to oust the jurisdiction of the Magistrate, for a mere order for maintenance is non-equivalent to maintaining the wife; and the order, whatever may be its force or nature, cannot take away the Magistrate’s jurisdiction so long as the husband neglects or refuses to maintain the wife." 3. In the present case, the question whether the respondent (husband) has neglected or refused to maintain the petitioner (wife) has not been considered on its merits. The learned District Magistrate before whom the petition was filed under section 488, has summarily dismissed it upholding the objection of the husband that the petitioner has already obtained a decree for maintenance in the civil Court and that is still in force. The learned District Magistrate is in error in having dismissed the petition in limine. As pointed out above, the mere existence of a civil Court decree is no consolation for the wife; she must get her maintenance and for that all that she is expected to prove before the Magistrate is that the husband has neglected, and refused to maintain her. As pointed out above, the mere existence of a civil Court decree is no consolation for the wife; she must get her maintenance and for that all that she is expected to prove before the Magistrate is that the husband has neglected, and refused to maintain her. Otherwise, it is easy for the husband to circumvent the decree of the civil Court some way or other, and escape from the clutches of the Magistrate by pleading bar of jurisdiction on the ground that a civil Court has already passed a decree. Of course, when it is brought to the notice of the Magistrate that a decree for maintenance has been passed by the civil Court, he should consider whether the decision of the civil Court would lead to the consequence that the order passed by the criminal Court should be cancelled or varied. There is no question of the Magistrate considering whether the decision of the civil Court has altered the circumstances of the case. For the purpose of sub-section (2) of section 489, the Magistrate should take the decision as it stands, and consider the effect of it on the order passed by the criminal Court under section 488. If the consequence is that it should be varied or cancelled, the effect must be given to it by cancelling or varying the order made under section 488. The discretion that is given under section 489 (2) is only for this limited purpose. See State v. Nagappa1. The result, therefore, is that the jurisdiction of the Magistrate under section 488, is not in any way affected by the civil Court passing a decree for maintenance. If the Magistrate thinks that in spite of the decree of the civil Court the husband continues to neglect the wife, and refuses to maintain her, a petition under section 488 can be entertained by him, and decided on its merits. The reference is, therefore, accepted, and the order of the learned District Magistrate upholding the objection of the husband and dismissing the petition is set aside. The learned District Magistrate will re-entertain the petition, and dispose of the same according to law. M.C.M. ----- Reference accepted.