N.Krishnan Nair, J.

Is an ex parte decree for restitution of conjugal rights obtained by a husband a bar to the consideration of his wife’s claim for maintenance under Sec. 125 of the Criminal Procedure Code? That is the question to be resolved in this revision. The 1st respondent herein filed a petition under Sec. 125 of the Code of Criminal Procedure against the petitioner before the Chief Procedure against the petitioner before the Chief Judicial Magistrate, Kasargod claiming maintenance for herself and her minor child (2nd respondent). The 1st respondent is the wife of the petitioner and the 2nd respondent is the child born out of the wedlock. The allegation of the 1st respondent was that the petitioner treated her with cruelty while she was living with him in the matrimonial home. It was further alleged that the petitioner has neglected and refused to maintain the respondents without any lawful excuse despite having sufficient means of income. The petitioner admitted the marriage and also the paternity of the child. But he resisted the petition mainly on the ground that the 1st respondent is disentitled to get maintenance since she is living separately from him without reasonable excuse. He further contended that he has obtained a decree for restitution of conjugal rights against his wife and the decree for restitution of conjugal rights is a bar to the consideration of the wife’s claim for maintenance under Sec. 125 of the Crl. P.C. The learned Magistrate rejected the contentions of the petitioner and ordered to pay maintenance at the rate of Rs. 500/- per mensem to the 1st respondent and Rs. 300/- per month to the 2nd respondent. The order is seriously challenged in this revision.

2. The learned counsel for the petitioner strongly contended that since there is a decree against the wife for restitution of conjugal rights, the wife is not entitled to get maintenance from her husband. According to the learned counsel, since a Civil Court has found that the wife has without reasonable excuse withdrawn from the society of the husband, it is not open to the Criminal court to come to a conclusion that the husband has neglected or refused to maintain her. He placed much reliance on the decision of the Himachal Pradesh High Court in Hem Raj v. Urmila Devi, (1997 (2) Crime 561). On the other hand, the learned counsel for the respondents supported the order of the court below and urged that there is no ground for interference.

3. In this case the wife’s claim for maintenance is resisted mainly on the ground that the husband has obtained a decree for restitution of conjugal rights against the wife. Admittedly the petitioner obtained a decree for restitution of conjugal rights against the 1st respondent in M.C.No.5/96 on the file of the Civil Judge, Madikiri. Ext.D1 is the copy of the judgment in M.C. 5/96. It is gatherable from Ext.D1 that the decree was obtained ex parte. According to me, merely because the petitioner has obtained an exparte decree for restitution of conjugal rights against the wife, her claim for maintenance cannot be rejected. No doubt, in Hem Raj v. Urmila Devi (1997 (2) Crimes 561) it has been held that once a civil court has considered the matter after contest by both the parties and come to a conclusion that the wife has without reasonable excuse withdrawn from the society of the husband, it is not open to the Criminal Court to come to a conclusion that the husband has neglected or refused to maintain her. According to me, the decision referred to above is not applicable to the facts of this case. In this case, as stated earlier, the decree for restitution of conjugal rights passed against the wife was obtained ex parte. It is gatherable from the evidence in this case that the wife could not contest the suit for restitution of conjugal rights because she is staying away from the husband and she had no sufficient means even to contest the proceedings. It is in evidence that the wife is now living wi