The discretion under section 489(2) of the Code of Criminal Procedure is limited to considering the consequence of a civil court decision on a maintenance order under section 488.

( 1 ) THIS reference is made under section 438 of the Code of Criminal Procedure by the learned sessions Judge, Bidar. Briefly stated, the facts are: gowramma who is respondent No. 2 in this reference obtained an order of maintenance under section 488 of the Code of Criminal Procedure at the rate of Rs. 20/- per month of 23rd March 1964. Subsequently she filed a civil suit and obtained a decree for maintenance at the rate of Rs. 40/- per month on 30th March 1966. After the decree of the civil court an application under section 488 (3) was made to the criminal court for enforcement of the order of maintenance at rs. 20/- per month passed by it. In that application Gowramma claimed a maintenance from february 1966 to end of April 1966. Objection had been filed on behalf of the first respondent that the order of maintenance made under section 488 should be cancelled under Section 489 (2) of the Code of Criminal Procedure. The Magistrate overruled the objection of Respondent No. 1. He filed a revision before the learned Sessions Judge, Bidar who has made this reference to this court with a recommendation to set aside the order under revision made by the Magistrate.

( 2 ) IT is not disputed that an order for maintenance at the rate of Rs. 20/- per month had been made under S. 488 of the Code of Criminal Procedure in favour of Gowramma had subsequently obtained a decree for maintenance at the rate of Rs. 40/- per month from the civil court of competent jurisdiction on 30th March, 1966. In view of the decree obtained by Gowramma from the Civil Court Respondent No. 1 filed objections before the Magistrate and prayed for the cancellation of the order made in favour of Gowramma under Section 489 (2) of the Code of criminal Procedure.

( 3 ) UNDER Section 489 (2) of the Code of Criminal Procedure, the Magistrate can vary or alter the order of maintenance if the circumstances so required. When it is brought to his notice that a decree for maintenance has been passed by the Civil Court it is the duty of the Court to consider whether that decision of the Civil Court leads to the consequence that the order passed by the criminal court under section 488 should be canceled 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 of the code of Criminal Procedure, the Magistrate should take the decision as it stands and consider the effect of if upon the order passed by the Criminal Court under section 488 Cr. P. C. If the consequence is that it should be varied or cancelled, effect must be given to it by cancelling or varying the order made under section 488, Cr. P. C. The discretion that is given under section 489 (2) is only for this limited purpose.

( 4 ) IT is not in dispute that a decree for maintenance at Rs. 40/- per month has been obtained by gowramma from the civil court of competent jurisdiction on 30th March 1966. therefore the criminal court should give effect to that decree and alter or vary the order made under section 488 according to law By the order of the Criminal Court which has been made on 23rd March, 1964, maintenance at the rate of Rs. 20/- per month had been awarded to her. The effect of the decree of the civil court is that she cannot be held entitled to any maintenance in pursuance of the order made by the criminal court under section 488 of the Code of Criminal procedure after 29th March 1966. She has claimed maintenance for the months of February, march and April 1966. By the order of the Criminal Court she would be entitled to maintenance till 30th March 1966. Therefore her application under S. 488 (3) can be allowed accordingly. She, however, cannot be held entitled to any maintenance in pursuance of the order of the criminal Court for the period subsequent to 29th March 1966. Subject to the above modification the reference made by the Sessions Judge is accepted and the same i

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