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2002 DIGILAW 68 (AP)

Damathoti Mangamma v. Domathoti Yedukondalu

2002-01-24

GOPALA KRISHNA TAMADA

body2002
GOPALA KRISHNA TAMADA, J. ( 1 ) THE factual matrix which led to filing this revision is that the petitioner, who is, admittedly, the wife of the 1st respondent, and her son filed a petition before the Judicial Magistrate of First Class, Macheria under S. 125, Cr. P. C. seeking maintenance at the rate of Rs. 500/- and the same was numbered as M. C. No. 4 of 1998. After examining PWs. 1 to 5 on behalf of the petitioner and her son and examining R. Ws. 1 to 5 on behalf of the respondent, the trial Court held that the petitioner and her son are entitled to maintenance at the rate of Rs. 500/- and Rs. 200/- respectively. ( 2 ) AGAINST the said order, the 1st respondent herein filed Crl. R. P. No. 156 of 1998 and the 1 Additional Sessions Judge, Guntur while allowing the maintenance awarded to the son, disallowed the maintenance in so far as the petitioner herein is concerned and thus allowed the Crl. R. P. No. 156 of 1998 partly. Hence, this revision by the petitioner, who is the wife of the 1st respondent herein. ( 3 ) THE main point that was considered by the learned I Additional Sessions Judge while disallowing the maintenance is that O. P. 79 of 1997 seeking restitution of conjugal rights filed by the 1st respondent herein was allowed by the learned Senior Civil Judge, Kovvur, West Godavari District and in view of the law laid down in Sulaxmi Bai v. Karre Sridhar, 1993 (2) Andh LT (Crl) 337 a husband need not maintain the wife, who voluntarily deserted him without reasonable excuse. ( 4 ) IN my considered view the order of the learned I Additional Sessions Judge in not allowing maintenance to the wife on the ground that she did not comply with the decree of restitution of conjugal rights as awarded against the petitioner herein in O. P. No. 79 of 1997 is erroneous. In the trial Court, the husband filed a counter denying the various allegations made by the petitioner herein. He did not make any whisper about the pendency of the O. P. for restitution of conjugal rights on the file of the Senior Civil Judge, Kovvur. In the trial Court, the husband filed a counter denying the various allegations made by the petitioner herein. He did not make any whisper about the pendency of the O. P. for restitution of conjugal rights on the file of the Senior Civil Judge, Kovvur. This decree of restitution of conjugal rights in O. P. No. 79 of 1997 is a subsequent development and in such cases there is a provision laid down in the Code of Criminal Procedure, that is S. 127 (2) P. C. Section 127 (2) Cr. P. C. reads as follows : "where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under S. 125, Cr. P. C. should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly. " ( 5 ) IN the light of the above provision of law, if the O. P. filed by the husband i. e. 1st respondent herein, was allowed and the petitioner herein is directed to join the company of the husband, it is always open for the 1st respondent-husband herein to file a petition before the concerned Court i. e. the Judicial Magistrate of First Class, who granted maintenance, bringing it to its notice the varied circumstances and basing on such facts, the Judicial Magistrate of First Class is always competent to cancel the maintenance awarded. In the instant case, the learned I Additional Sessions Judge, before whom the fact of passing of decree in O. P. No. 79 of 1997 was brought into notice, without following the procedure laid down in the Code has taken that into consideration and allowed the revision filed by the 1st respondent and accordingly disallowed the maintenance. ( 6 ) IN the light of the above discussion, I have no hesitation to hold that the order passed by the learned I Additional Sessions Judge is nothing but illegal. Accordingly the order dated 28-10-1999 made in Crl. R. P. No. 156 of 1998 by the I Additional Sessions Judge, Guntur is set aside. ( 6 ) IN the light of the above discussion, I have no hesitation to hold that the order passed by the learned I Additional Sessions Judge is nothing but illegal. Accordingly the order dated 28-10-1999 made in Crl. R. P. No. 156 of 1998 by the I Additional Sessions Judge, Guntur is set aside. ( 7 ) HOWEVER, it is open for the 1st respondent herein to file a petition before the judicial Magistrate of First Class, Macheria bringing it to its notice about the decision passed by a competent Civil Court i. e. the Senior Civil Judge in O. P. No. 79 of 1997 and on such presentation of a petition, it is open for the Magistrate to decide the same after adducing the evidence in accordance with law. Revision allowed.