Court:Allahabad High Court
Bench: JUSTICES S Harkauli, V Nath
Smt. Kanchan Upadhyay Vs. State Of U.P. On 19 January 2006
Wife cannot claim restoration of possession.
Parmanand Mishra, the husband has moved the present petition under Section 482 of the Code of Criminal Procedure challenging an order of interim maintenance at the rate of Rs. 300/- per mensem in a petition under Section 125 of the Code of Criminal Procedure, passed by Judicial Magistrate Ist Class, Faridabad on 21-10-1991 and also the order of its affirmation passed by Shri B P. Jindal, Additional Sessions Judge, Faridabad on 5-3-1992.
2. The main plea put forward on behalf of the petitioner challenging the two orders of interim maintenance is that there is a decree of restitution of conjugal rights in favour of the husband passed by the First Upper Civil Judge, Mathura on 18-8-1992. A copy of the aforesaid Judgment is Annexure P-4.
3. On behalf of the petitioner husband it has been argued that if there is a decree for restitution of conjugal rights in favour of the husband passed by a Competent Court the order of interim maintenance passed by a Judicial Magistrate under Section 125 of the Code of Criminal Procedure should not be enforceable.
4. The factual position that by now there is a decree of restitution of conjugal rights in favour of the husband though ex parte has not been controverted here. The learned Counsel for the petitioner has referred to Surjit Singh v. Gurmel Kaur and Others, 1977 PLJ (Cr.) 293, wherein it was held that an order of Civil Court where a decree under Section 9 of the Hindu Marriage Act has been passed shall have over-riding effect. Besides this, attention has also been drawn to Jasbir Singh v. Mrs. Amrit Kaur Walia, 1991 (2) CLR 374. Where in similar circumstances it was observed that a decree passed under Section 9 of the Hindu Marriage Act should not remain uncomplied. Any authority to the contrary has not been referred to here. The conclusion is that the present petition succeeds and it is held that the impugned order shall be non-operative with effect from 8-8-1992. Besides this, it is further ordered that in case Rekha Mishra the wife has actually received and spent the maintenance disbursed to her prior to the pronouncement of this judgment it shall not be recovered from her.
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