A Magistrate has the discretion to cancel or vary an order for maintenance under Section 488, Cr. P. C., even if a decree for restitution of conjugal rights has been passed by a competent Civil Court.

L. S. MEHTA, J.

( 1 ) THIS is a reference submitted by Shri Roshanlal Sharma, Sessions Judge, bikaner, recommending that the order of Sub-Divisional Magistrate, Bikaner, (City), dated October, 11, 19. 66, allowing maintenance allowance of Rs. 60, to smt. Bhanwari, may be set aside.

( 2 ) THE facts of this case are short and simple. Smt. Bhanwari is admittedly the legally married wife of Jhanwarlal. After the marriage Smt. Bhanwari lived with her husband amicably for some time. It is alleged that some time later Jhanwarlals father Chhaganlal desired to satisfy his sexual lust with Smt. Bhanwari and for that purpose he made an, indecent assault on her. Smt. Bhanwari brought this fact to the notice of both her husband and her mother-in-law, but instead of their coming to her rescue, she was beaten by them and turned out of the house. Consequently she withdrew from the residence of Jhanwarlal and started residing with her father. Later on, she made an application in the court of learned Sub-Divisional magistrate, Bikaner, under Section 488, Cr. P. C. , for grant of alimony. The said magistrate, after necessary inquiry, made an order, on October 11, 1966, allowing maintenance allowance of Rs. 60 to Smt. Bhanwari. Prior to this Jhanwarlal also filed an application for restitution of conjugal rights in the court of District Judge, bikaner, on January 18, 1966, under Section 9 of the Hindu Marriage Act, 1955. That application was decreed in favour of the petitioner on November 1, 1966, on the ground that Smt. Bhanwari had no reason to withdraw herself from the society of her husband. On an application filed by Jhanwarlal in revision against the order of Sub-Divisional magistrate, Bikaner, dated October 11, 1966, learned Sessions Judge, Bikaner, heard the parties and expressed the view that when a decree for restitution of conjugal rights was passed subsequent to the order of awarding maintenance, that decree has to be respected and should be treated as a sufficient cause for not giving effect to the order for maintenance. He relied upon certain authorities, reported in Khan Bahadur Nawabi v. Ml Ilahi Noor, AIR 1945 Pesh 53, and Tarak nath Dhar v. Sneharani Dhar, AIR 1949 Cal 87 and submitted a reference to this court, with the request that the maintenance order passed by Sub-Divisional magistrate, Bikaner, be quashed.

( 3 ) THE proposition laid down by learned Sessions Judge is one that is open to considerable doubt. From a reading of Sub-section (2) to Section 489, Cr. P. C. it seems to me to follow that the judgment of a competent Civil Court does not of itself cancel the maintenance order and that in considering any such application as the present, the Magistrate is not necessarily bound to follow the order of the Civil court, but must consider it, along with anv other circumstance, if any, which may be brought to his notice. Section 489 (1), Cr. P. C. enables a Magistrate on a change in the circumstances of the party receiving an allowance under Section 488, Cr. P. C. , to modify or vary the order. This sub-section contemplates a change in the circumstances as would lead to a reduction or the increase in the allowance. Cancellation of order is specifically provided for under Sub-section (5)to Section 488, and Sub-section (2) to Section 489, Cr. P. C. Under Sub-section (5) to Section 488, maintenance order may be cancelled on proof that wife is living in adultery, or that, without sufficient reasons, she declines to live with her husband, or that they are living separately by mutual consent. The terms of reference are not covered by this provision. Sub-sec. (2) to Section 489 reads as following:-"where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under Section 488 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly. " under the above sub-section, the Magistrate is empowered to consider whether in consequ