Order. 1. Criminal Miscellaneous Petition No. 1779 of 1980 filed under section 482, Criminal Procedure Code, is to quash the order dated 26th June, 1980 of the I Additional Metropolitan Sessions Judge, Hyderabad in Crl.R.P. No. 97 of 1980 confirming the order of the II Metropolitan Magistrate in M.C. No. 44 of 1978. 2. The material facts can be briefly noticed. The petitioner is a police constable. He married the respondent on 9th September, 1974. They have been living separate since 23rd June, 1977. According to the respondent, the petitioner is an addict to drink and was beating her and ill-treating her and has driven her out of the house. According to the petitioner, the respondent was frequently leaving the house to five with her parents and she ultimately left the matrimonial house taking away some Articles on 23rd June, 1977. The petitioner gave notice to the wife and ultimately filed O.S. No. 941 of 1978 for restitution of conjugal rights on 7th April, 1978. During the pendency of that suit the respondent filed M.C. No. 44 of 1978, O.S. No. 941 of 1978 was decreed ex parte on 29th July, 1978. The respondent took no Steps to have that ex parte decree set aside and it has become final. M.C. No. 44 of 1978 was allowed in favour of the respondent granting to her a monthly maintenance of Rs. 100. The petitioner unsuccessfully carried the matter in revision before the I Additional Metropolitan Sessions Judge in Criminal R.P. No. 97 of 1980. He has therefore invoked the jurisdiction of this Court under section 482, Criminal Procedure Code, to quash the orders granting the respondent maintenance. 3. Mr. Azizullah Khan, learned Counsel appearing for the petitioner, has submitted that having regard to the decree in O.S. No. 941 of 1978 which became final, it was not open to the Magistrate to reach any other conclusion. His submission is that if in terms of the decree in the civil suit the husband is blameless and became entitled for the company of his wife, the maintenance awarded by the Magistrate cannot be allowed to stand. 4. The effect of a decree for restitution of conjugal rights on the application of a wife for maintenance has been considered in various decisions. 4. The effect of a decree for restitution of conjugal rights on the application of a wife for maintenance has been considered in various decisions. The majority view is to be found expressed in Fakruddin Shamsuddin Saiyed v. Bai Jenab1 in the following manner: “I agree that where a civil Court has made a decree for restitution of conjugal rights, it has decided on the material before it that the wife ought to return to the husband, and if that is so, if she is in default in not returning, prima facie, the order made under section 488 ought to be cancelled. The Magistrate's discretion under that section must no doubt be exercised judicially but, in my opinion, it is a real discretion. I think the present applicant is going too far in suggesting that the Magistrate is bound to cancel the order because a civil Court has made an order for restitution of conjugal rights. I think the Magistrate is entitled, and indeed bound, to satisfy himself that the applicant is bona fide prepared to give effect to the order of the civil Court; that he is prepared to offer the wife a home which she ought to accept. The mere fact that the civil Court is satisfied on that point does not justify the Magistrate in surrendering his own discretion, he must be satisfied. Unless he is satisfied, the risk is that of a party having obtained a mere-paper decree of a civil Court without any intention of giving effect to it. We think, therefore, the order of the lower Court was right, and on the material, before the Magistrate he was entitled to decline to revoke the order, there being no evidence before him as to what home the husband was prepared to offer the wife”. The Calcutta High Court in Taraknath v. Sheharani2 took a contrary view when it expressed itself that a decree for restitution of conjugal rights given by a civil Court is a binding decision to the effect that the wife had no sufficient reason for refusing to live with her husband. The Calcutta High Court in Taraknath v. Sheharani2 took a contrary view when it expressed itself that a decree for restitution of conjugal rights given by a civil Court is a binding decision to the effect that the wife had no sufficient reason for refusing to live with her husband. That view however was not adhered to in another later case which arose before the same High Court in S.S. Nayak v. Aloka Ram Nayah3 After referring to the two decisions aforesaid, R.N. Dutt, J., preferred to follow the view expressed by the Bombay High Court, Ghua, J., in Kunti Bala Dassi v. Nabin Chandra4 preferred the view expressed by the Bombay High Court. 5. A.D.V. Reddy, J., in Ashappa arid Kistamma and others5, expressed that the order for restitution of conjugal rights does not mean that the order of maintenance should be cancelled, the moment an order for restitution from a civil Court is obtained, as a husband may contrive or manouevre to obtain such orders. It is the duty of the Magistrate therefore to go into the bona fides of the action taken by the husband and refuse to cancel the maintenance order in deserving cases. 6. The Gauhati High Court in Mst. Dhanari Rabi Das v. Fagu Rabi Das6 and the Kerala High Court in Gopala Pillai v. Kamalamma Padmini Amma1 have expressed themselves in much the same manner as in the decision of the Bombay High Court. 7. In Dahyalal Amathalal v. Bed Madhukanta2 the question arose as to the effect of a decree for judicial separation on an earlier order for maintenance passed by the Magistrate under section 125, Criminal Procedure Code, V. B. Raju, J., while referring to the decision in Fakruddin Shamsuddin Saiyed v. Bal Jenab3 has distinguished it as relating to a decree of conjugal rights and held that if it is a decree for judicial separation, different considerations ought to prevail. 8. Mr. 8. Mr. Azizullah Khan, then placing reliance on the Judgment in Ahmed Abdul Qadeer v. Reffat Banu4 has submitted that a wife at fault cannot rely upon the failure on the part of the husband to pay maintenance as a ground for seeking divorce under the dissolution of Muslim Marriages Act, 1939 and that the same principle ought to be followed in this case also by denying maintenance to the respondent because of the decree for restitution of conjugal rights obtained by the petitioner. The effect of a decree for restitution of conjugal rights on the order of maintenance passed in favour of the wife did not arise for consideration before Jeevan Reddy, J., and the said Judgment does not in any manner runs counter to the view expressed by A.D.V. Reddy, J., in the unreported decision referred to above. It is thus to be seen that in almost all the decisions referred to above, the view is consistently taken that the mere decree for restitution of conjugal rights does not automatically bar the wife from claiming maintenance but that it is only a piece of evidence to be taken into account by the Magistrate in determining the wife's entitlement to maintenance. 9. Mr. Azizullah Khan made a request that the question may be referred to a Bench of two Judges as the view so expressed will have far reaching consequences that the judgment rendered by a civil Court will be of no value at all if the Magistrate is to ignore it altogether. As earlier stated the decree for restitution of conjugal rights cannot be ignored but should be considered with the weight due to it along with the other evidence which the parties have been able to adduce before the Magistrate and the Magistrate has the discretion to decide on such material whether the wife is entitled to maintenance despite the fact that the husband has got a decree for restitution of conjugal rights. I do not feel persuaded that this view requires any revision and the question therefore needs to be referred to a Bench. 10. The evidence adduced before the Magistrate is that of the wife and that of her mother and of another witness who lives in the neighbourhood. The evidence is to the effect that it is usual for the petitioner to drink and beat and ill-treat the respondent at home. 10. The evidence adduced before the Magistrate is that of the wife and that of her mother and of another witness who lives in the neighbourhood. The evidence is to the effect that it is usual for the petitioner to drink and beat and ill-treat the respondent at home. That evidence has been accepted by both the Magistrate and the learned Metropolitan Sessions Judge and on that state of evidence the petitioner cannot contend that the decree for restitution of conjugal rights obtained by him would set at naught this evidence as to ill-treatment. Even after obtaining the decree for conjugal rights the petitioner made no efforts to assure the respondent that she will be treated with the respect due to her and his evidence discloses that even on festive occasions he has not sent her any customary presents as a token of affection towards he and he has also not sent her any moneys to provide for her maintenance. The view which both the Courts below have taken is correct. There is no miscarriage of justice which requires exercise by this Court of its inherent powers under section 482, Criminal Procedure Code. Three months time is given for the petitioners to pay the arrears of maintenance due for the period upto and inclusive of July, 1980. 11. In the result Criminal Miscellaneous Petition No. 1779 of 1980 is dismissed. The interim stay granted on 6th August, 1980, Crl.M.P. No. 1781 of 1980 is vacated. Petition dismissed.