A decree for restitution of conjugal rights may bar the wife from claiming maintenance under Section 125 of the Code of Criminal Procedure, and the Civil Court's findings in contested proceedings are crucial in determining the entitlement to maintenance.

M. Srinivasan, C. J.—The respondents herein filed a petition under Section 125 of the Code of Criminal Procedure on 25-2-1993 on the file of the Additional Chief Judicial Magistrate, Hamirpur for maintenance. The first respondent is (he wife of the petitioner and respondents No. 2 to 4 are the children born out of the wedlock, The allegation of the 1st respondent was that her husband, petitioner herein had neglected and refused to maintain the respondents without any lawful excuse despite having sufficient means of income, whereas according to her she had no source of income to maintain herself and the children The Additional Chief Judicial Magistrate found that the 1st respondent had no valid excuse to be away from the husband and as such she is not entitled to maintenance from him. However, he proceeded to grant maintenance in favour of the three children at the rate of Rs 250 per month The petitioner did not challenge that older as he was willing id pay maintenance to the children. The first respondent challenged the order by filing Criminal Revision No 1 of 1996 on the file of the Sessions Judge, Hamirpur The Sessions Judge has reversed the order of the Additional Chief Judicial Magistrate in so far as it related to the maintenance claimed by the 1st respondent herein. Consequently, she directed the petitioner herein to pay a sum of Rs 200 per month by way of maintenance to the 1st respondent, from the date of the decision of the trial court i e. 18-11-1995.

2. The aggrieved husband has preferred this revision petition during the pendency of the proceeding before the Additional Chief Judicial Magistrate The petitioner herein had filed a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights on the file of the Senior Sub-Judge, Hamirpur That proceeding was instituted on 17 4 !99j and after contest, it was disposed of on 30-6-1995, The Civil Court found that the 1st respondent had no reasonable or just cause for withdrawing herself from the society of the petitioner herein Consequently, the Senior Sub-Judge passed a decree for restitution of conjugal rights, as prayed for by the petitioner herein. Admittedly, that decree has become final as it has not been challenged by way of appeal by the 1st respondent- It is recorded in the judgment of the Civil Court in paragraph 8 that the 1st respondent had stated before the court that she was ready to accompany the husband, but she contested the proceedings and a decree has been passed for restitution of conjugal rights

3. In this revision petition, learned Counsel for the petitioner contends that once the Civil Court has gone into the matter and given findings that the 1st respondent had no reasonable or just cause for withdrawing herself from the society of the husband, then the Criminal Court cannot grant maintenance in her favour on the footing that the husband had neglected or refused fo maintain her. The order of the Civil Court was marked as Ex. RX before the Additional Chief Judicial Magistrate. The revisional court while referring to the said order held that inspite of the order for restitution of conjugal rights, if is open to the Criminal Court to consider the claim of maintenance and grant the same. The revisional court has also taken into account a circumstance that maintenance was being paid by an order passed by the Army authorities at a time, when the petitioner herein was serving in the Army on a representation made by the Ist respondent herein. It is not in. dispute that the petitioner herein was making payments from 1989 by virtue of the said order of maintenance passed by the Army authorities.

4. The contention of learned Counsel for the petitioner is that the order passed by the Civil Court having become final, the 1st respondent cannot claim maintenance under Section 125 of the Code of Criminal Procedure. It is also contended by him that the factum of payment of maintenance when the petitioner was in the Army service will not