R.P. Gupta, J.

1. The order of interim maintenance has been passed against the petitioner in favour of the respondent by J.M.F.C. Balaghat on 16-4-98 in Cr. Case No. 57/95 under Section 125 Cr.P.C.. The objection of the petitioner-husband is that the wife was not complying with the decree of restitution of conjugal rights passed under Section 9 of the Hindu Marriage Act by the Court of Distt. Judge, Balaghat on 19-3-97 in C.S. No. 28-A/92. The petition for maintenance was filed by the wife before the magistrate in the year 1995. It appears that while the petition under Section 125 Cr.P.C. as well as suit under Section 9 of the Hindu Marriage Act were pending, the husband was paying interim maintenance to the wife under Section 24 of the Hindu Marriage Act under orders of the Distt. Judge, where the suit was pending. That maintenance pendent lite was stopped after the decree for restitution of conjugal rights was passed. The decree is said to be under appeal now in the High Court but the operation has not been stayed. It was after that decree that the wife moved for interim maintenance in the proceedings under Section 125 Cr.P.C. and the magistrate passed the order dated 16-4-98 granting maintenance @ Rs. 200/- p.m.. The proceedings are still pending.

2. In Cr. Revision No. 54/98 the plea of the husband was declined that the wife was not entitled even to interim maintenance because of the final decree of restitution of conjugal rights not being complied by the wife, on the ground that the matter was subject matter of trial and the maintenance was interim. The revisional Court said that it was an interim order and so revision petition did not lie.

3. The order of interim maintenance is also an order of moment as it substantially effects the financial position of both the sides. It is accept position that if the husband does not comply his property can be attached or he can be sent in prison. So the view of the learned Addl. Sessions Judge that it is an interlocutory order against which revision would not lie, is erroneous.

4. The only question is whether the matter should be remanded back to the sessions Court for decision on its merits in the revision proceedings or it should be decided by this Court. I feel that the best course will be to decide it now so that the parties be saved of another litigation expense of rehearing before the sessions Court.

5. The question of maintenance to the wife after decree for restitution of conjugal rights is passed in favour of the husband against the wife and non-compliance by her generally depends on the circumstances whether the husband is creating such a situation that the wife is unable to comply with the decree or whether the wife is deliberately not complying the decree instead of husband's wish to live with the wife. In the case of Babulal v. Sunita (1987 Cr.L.J. 525) the Court said that passing of decree for restitution of conjugal rights is by itself not a ground, not to allow maintenance to the wife under Section 125 if she has reason to live separate. Similar observations were made by Delhi High Court in the case of Mohd. Shakeel v. Shaeehna Parveen (1987 Cr.L.J. 1509).

6. The law, as seen, appears to be that even after decree of conjugal rights is obtained by the husband and it is he who is creating situation that the wife is not in a position to comply with the decree, then the right of the wife for maintenance cannot be taken away. But if the wife is in fault, which may appear from non-compliance of the decree of conjugal rights, then she may be disentitled. But those aspects will be tried during the hearing of the petition under Section 125 Cr.P.C. In the present case the impugned order is of interim maintenance. The question would be whether the wife is actually not complying with the decree or the husband is not complying with the decree or creating conditions where compliance is not possible. All these would be decided by the trial magistrate. But in these circumstances it wo