A decree for restitution of conjugal rights under Section 9 of the Hindu Marriage Act does not bar the wife's claim for maintenance under Section 125 CrPC till the date of the decree, and a minor child is entitled to maintenance under Section 125 CrPC irrespective of such a decree.

Sarojnei Saksena, J.

1. Petitioners learned counsel relying Jai Kaur v. Ajaib Singh, 1988(1) All India Hindu Law Reporter 340 and Piara Singh v. Satwant Kaur and others, 1988(2) Punjab Law Reporter 579 contended that a decree for restitution of conjugal rights is passed in favour of the petitioners on 20th August, 1990 by the Additional District Judge, Jind. The respondent-wife has not obeyed this decree. Hence, she is not entitled to claim maintenance from the petitioner under Section 125 of the Code of Criminal Procedure even on the interim basis. The second contention is that the Courts below have fallen into an error in straightaway issuing warrant of arrest against the petitioner for realisation of arrears of the maintenance under section 125(3) of the Code of Criminal Procedure. Instead of arresting the petitioner, in the first instance, Magisterial court ought to have issued warrant of attachment of moveable/immoveable property of the petitioner. To buttress this contention, he has relied on Raj Kumar v. Smt. Krishna Kumari and another, 1984(2) CLR 396. Hence, he prays that the impugned orders be quashed whereby for recovery of the arrears of maintenance granted by the Courts below in favour of the respondents warrant of arrest is being executed by sending him to jail.

2. Respondents learned counsel contended that respondents filed a petition under Section 125 of the Code of Criminal Procedure against the petitioner on 26th July, 1989. During the pendency of that petition, another petition was moved for grant of ad interim maintenance which was allowed by the order dated 15th March, 1990. The petitioner was ordered to pay interim maintenance of Rs. 200/- per month to the wife-respondent No. 1 and Rs. 100/- per month to the child Rakesh-respondent No. 2 with effect from 26th July, 1989. As a counterblast to this order, the petitioner filed a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights and obtained a decree on 20th August, 1990. Till today, he has not paid any amount towards maintenance to the respondents. It is further pointed out that the petitioner has not come to the Court with clean hands. The respondent No. 1 was given severe beating by the petitioner and was compelled to bring more cash as dowry on 16.7.1989. The respondents father along with other persons went to Jind and with the intervention of police got freed the respondent from the clutches of the petitioner and brought her to Kaithal on 17.7.1989. Thereafter, on her complaint dated 19th September, 1989 a criminal case under Sections 363/406/498-A and 506 of the Indian Penal Code is registered against the petitioner by the police station, Kaithal and that criminal case is pending against the petitioner. So far as the decree passed under Section 9 of the Hindu Marriage Act is concerned, on 16.3.1992 the petitioner filed an Execution Petition in the Court of the Additional District Judge, Jind. The said Court held that the execution petition filed by the petitioner is not maintainable and it was dismissed on 27th July, 1992, a copy of that order is filed as Annexure R-2. His revision against grant of maintenance order was also dismissed by the Additional Sessions Judge, Kaithal vide order Annexure P-5 wherein the Court held that the revision petition is meritless. The petitioner has no justifiable cause to get the execution proceedings of recovery of maintenance quashed.

3. Respondent learned counsel contended that the authorities relied on by the petitioners counsel are distinguishable as in this case the petitioner has not paid a single paisa towards maintenance to the respondents. The Magistrates order of issuing warrant of arrest against the petitioner was the only course open to the Court.

4. Admitted facts of this case are that the respondent-wife filed a petition under section 125 of the Code of Criminal Procedure in the Court of Sub Divisional Judicial Magistrate, Kaithal on 26.7.1989. On 15.3.1990 an or