A decree for judicial separation obtained by the husband bars the wife's claim for maintenance under Section 488 of the CrPC.

1. This is a reference by the Second Additional Sessions Judge, Ludhiana, dated 22nd October, 1968, whereby the order passed by the Judicial Magistrate First Class, Ludhiana, dated 19th August, 1968, was recommended to be set aside.

2. The facts giving rise to this reference are that Puahpa Rani made an application against her husband Baldev Raj Kumar under Section 488 of the Criminal P.C. claiming maintenance for herself and her child. Having obtained a decree for judicial separation against his wife Baldev Raj Kumar made an application in the proceedings under Section 488 of the Criminal P.C. initiated against him by his wife Pushpa Rani praying that the proceedings against him be dropped in view of the decree for Judicial separation obtained by him from a competent Civil Court. This application of the husband was dismissed by the impugned order. Being aggrieved Baldev Raj Kumar filed revision petition before the Sessions Court on the basis of which the present reference has been made to this Court recommending the quashing of the order of the learned Magistrate dated 19th August, 1968, disallowing the application of the husband in so far as the proceedings relating to the grant of maintenance to the wife are concerned.

3. In order to examine the effect of the decree for judicial separation obtained by the petitioner, a reference will have to be made to Sub-Section (4) of S.488 and Sub-Section (2) of S.489 of the Criminal P.C. which are in the following terms :

"488(4) - No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent."

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489(2) - 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."

4. A reading of the above provisions would show that Section 489(2) empowers the Magistrate to cancel or vary an order for maintenance in consequence of a decision of a Civil Court. This provision would imply that if there is inconsistency between the decision of the Criminal Court and that of the Civil Court, the decision of the Civil Court would prevail. Under Section 489(2) all that the Magistrate has to see is as to whether any change in the order is called for in consequence of the decision of a competent Civil Court and if a change is called for he shall carry out that change either by cancelling the order or by varying it in accordance with the decision of the Civil Court. The Legislature seems to have given more importance to the decision of the Civil Court while embodying this provision. In Jetha Singh V/s. Mst. Gian Kaur, Criminal Revn. No. 937 of 1963 decided by Bedi, J., on 16-3-1964 (Punj) it was observed that it a ground exists on which the petitioner could get the maintenance order cancelled there was no reason why the order under Section 488 of the Criminal P.C. should be made if the same ground exists.

5. Under Section 10 of the Hindu Marriage Act, the husband is entitled to a decree for judicial separation on the ground that the wife has deserted him for a continuous period of not less than two years immediately preceding the presentation of the petition under Section 10 of the Act. The expression desertion has been defined to mean the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage. From this it necessarily follows that if a decree for judicial separation has been passed against the wife it would imply that the wife has no reasonable ground for not living with the husband. In such a case sub-Section (4) of S.488 of the Criminal P.C. would come into operatio