JUDGMENT

Boys, J. - This is a Reference by the Sessions Judge of Benares recommending this Court to quash the order of the Joint Magistrate of Benares ordering the accused in the case Rajpatti to pay a monthly allowance of Rs. 8 to Musammat Deoli, the applicant in a case u/s 488 of the Code of Criminal Procedure. It appears that on the 15th of November 1922 the husband got a decree against the wife for restitution of conjugal rights. The Magistrate in this case was asked by the wife to give her an order for maintenance unrestricted by any condition that she should live with him. The order actually passed by the Magistrate does not expressly free her from any condition. But it was clearly intended so to do, in that the Magistrate says that he thinks "she is quite justified in refusing to live with him" and then goes on to give her an order. That order he was entitled to make under the proviso to Clause (3) of Section 488 of the Criminal Procedure Code under ordinary circumstances. The learned Sessions Judge remarks that he would consider the Magistrate's order justified if the matter were res Integra. But he considers that the decree passed on the 15th of November 1922 was binding on