( 1 ) THIS revision petition arises out of an order dt. 13-2-1985, passed by the Judicial Magistrate, 1st Class, Indore in Cri. Case No. 4 of 1984, thereby rejecting the objection raised by the petitioner about the maintainability of proceedings under S. 125, Cr. P. C. in face of a decree for restitution of conjugal rights.

( 2 ) THE brief facts are that the respondent Smt. Sunita moved an application for maintenance on 6-4-1984. The petitioner-respondent made his appearance on 31-8-1984 and prayed for copy of the petition, which was supplied to him. The case was fixed for reply on 28-9-1984 and as none appeared for the petitioner, the case was directed to proceed ex parte and 18-10-1984 was fixed as the date for ex parte evidence. On 9-10-84, the petitioner filed his reply. On 16-11-1984 a certified copy of the judgment dt. 13-2-1984, passed by the Addl. District Judge, Burhanpur, was also filed on record. By order dt. 18-10-1984 the trial Court permitted the petitioner to participate in the proceedings. The reply filed by him was taken on record and 16-11-1984 was fixed for evidence of both the parties. It was at this stage that the petitioner moved an application raising an objection that in view of the decree for restitution of conjugal rights passed by the Addl. District Judge, against which no appeal as such was preferred by the respondent, the application for maintenance was liable to be dismissed and should be dismissed without recording any evidence. The respondent Smt. Sunita submitted her reply to this application stating that the decree for restitution of conjugal rights passed against her was obtained ex parte and she could not contest the suit as she was confined to bed and was required to be hospitalised on 5-1-1984. In such circumstances, the ex parte decree obtained by the present petitioner should not be allowed to come in her way of claiming maintenance.

( 3 ) THE trial Court considering the rival submissions made by the parties, rejected the objection raised by the petitioner and fixed the case for evidence on 28-2-1985, but for one reason or the other, it could not be recorded.

( 4 ) THE present revision petition raised a short question, whether in face of a decree for restitution of conjugal rights, can a wife not complying with the decree, still maintain the proceedings under S. 125, Cr. P. C. ? Learned Counsel appearing for the petitioner placing reliance on Sunderlal Puniwala v. Nirmalabai, 1962 MPLJ (SN) No. 258 and Hiraman Singh v. Smt. Urmilabai, 1966 MPLJ (SN) 82 urged that these decisions are binding on the subordinate Courts and the learned Magistrate should have followed the same in upholding the petitioner's objection in preference to the decision of the Karnataka High Court in K. Narayan Rao v. Bhagyalakshmi, 1984 Cri LJ 276, which in turn relies on the decision in Mst. Zohara Khatoon v: Mohd. Ibrahim, AIR 1981 SC 1243.

( 5 ) SO far as the decisions relied upon by petitioner are concerned, in the case of Hiraman Singh (supra), the facts as can be gathered from the Note indicate that the question before the Court was one of enforcement of the order of maintenance and it was during the enforcement proceedings that the objection was raised, while in the case of Sunderlal Puniwala (supra), the question considered by the Court was whether the wife, who refused to live with her husband without any sufficient cause, would be entitled to claim maintenance in face of sub-sec. (4) of S. 488. Cr. P. C. and the Court held that in face of such a decree, the Magistrate could not award any maintenance allowance to the wife. Along with these two decisions of the same learned Judge, the trial Court has also referred to yet another decision of this Court in State of M. P. v. Yeshpal, 1964 MPLJ (SN) No. 131 which takes a contrary view. In this case an ex parte decree for restitution of conjugal rights was passed in favour of the husband during the pendency of the wife's application for maintenanc