A Magistrate is bound to cancel or vary an earlier order of maintenance under Section 125 of the Code of Criminal Procedure, 1973, in accordance with the judgment of a competent civil court specifically on the issue of maintenance.

S.S.SANDHAWALIA, J.

1. Whether it is obligatory for a Magistrate under Section 127(2) of the Code of Criminal Procedure, 1973, to cancel or vary an earlier order of maintenance under S.125 of the said Code strictly in accordance with the judgement of a competent civil Court specifically on the issue of maintenance, is the meaningful question which has necessitated this reference to the Division Bench.

2. The facts disclose a long history of matrimonial discord betwixt the petitioner-husband and the respondent-wife They were married more than 25 years ago and even way back in 1960, a petition under Section 10 of the Hindu Marriage Act claiming a decree of judicial separation was filed by the petitioner-husband, which was, however, dismissed on September 27, 1963. Later, in the year 1965, the respondent-wife preferred an application for maintenance under Section 488 of the old Code of Criminal Procedure, which was allowed and a monthly maintenance allowance of Rs. 50 was ordered on the 25th of June, 1965. Feeling dissatisfied later with the quantum of maintenance the respondent-wife moved an application for enhancement thereof, but she did not meet with any success in the Court of the Magistrate who dismissed the same on the 16th of September, 1975. A revision petition was, however, carried against the same, which was allowed by the learned Additional Sessions Judge, Sangrur, who by his order dated 6th of August, 1976, enhanced the maintenance allowance to Rs. 65 per mensem.

3. Apparently, not satisfied with the aforesaid maintenance, the respondent-wife filed a regular civil suit in the year 1973 against the petitioner-husband for the recovery of Rs. 12,000 as maintenance allowance in the lump sum at the rate of Rs. 100 per mensem with an added prayer to have the said amount as a charge on the landed estate of the petitioner-husband. Two specific issues in the following terms were framed in the said suit, which were decided against the respondent-wife and, as a necessary consequence, the suit was dismissed by the learned Subordinate Judge by his judgement dated the 30th of April, 1974 :-

1. Whether the plaintiff was turned out by the defendant from his house and the defendant has refused to maintain her ? If so, to what effect ?

2. If issue No. 1 is proved, to what amount the plaintiff is entitled to recover from the defendant as monthly maintenance allowance ?

An appeal against this judgement and decree was carried. The finding of the trial Court on issues Nos. 1 and 2 were specifically affirmed by the learned Additional District Judge on merits in his considered judgement dated the 15th of November, 1976, dismissing the appeal.

4. Armed with the judgement s of the civil Courts, the petitioner-husband moved an application under Section 127(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the new Code), seeking cancellation of the maintenance order on their basis. On 6-2-1978 Shri G.S. Mann, Judicial Magistrate, Ist Class, Sangrur, accepted the petitioner-husbands prayer and cancelled the order of maintenance in favour of the respondent-wife in accordance with the civil Court decree. A revision petition was then carried against the said judgement by the respondent-wife, which came up before the learned Sessions Judge, Sangrur, who, vide his order dated 16th of August, 1978, accepted the same, set aside the order of the learned Magistrate and remanded the matter for fresh decision. The case then went back to the Additional Chief Judicial Magistrate who, by the impugned judgement dated 13-10-1978, has taken the view that despite the decree of the civil Court directly on the question of maintenance, he still has the discretion in the matter to follow it or not and, in the ultimate result, dismissed the application of the husband-petitioner. Aggrieved by the above, the husband preferred this criminal revision petition which first came up before me sitting singly.

5. Noticing some divergence of