N. Krishnan Nair, J.

1. Is an ex parte decree for restitution of conjugal rights obtained by a husband a bar to the consideration of his wifes claim for maintenance under Sec. 125 of the Criminal Procedure Code That is the question to be resolved in this revision. The 1st respondent herein filed a petition under Sec. 125 of the Code of Criminal Procedure against the petitioner before the Chief Procedure against the petitioner before the Chief Judicial Magistrate, Kasargod claiming maintenance for herself and her minor child (2nd respondent). The 1st respondent is the wife of the petitioner and the 2nd respondent is the child born out of the wedlock. The allegation of the 1st respondent was that the petitioner treated her with cruelty while she was living with him in the matrimonial home. It was further alleged that the petitioner has neglected and refused to maintain the respondents without any lawful excuse despite having sufficient means of income. The petitioner admitted the marriage and also the paternity of the child. But he resisted the petition mainly on the ground that the 1st respondent is disentitled to get maintenance since she is living separately from him without reasonable excuse. He further contended that he has obtained a decree for restitution of conjugal rights against his wife and the decree for restitution of conjugal rights is a bar to the consideration of the wifes claim for maintenance under Sec. 125 of the Crl. P.C. The learned Magistrate rejected the contentions of the petitioner and ordered to pay maintenance at the rate of Rs. 500/- per mensem to the 1st respondent and Rs. 300/- per month to the 2nd respondent. The order is seriously challenged in this revision.

2. The learned counsel for the petitioner strongly contended that since there is a decree against the wife for restitution of conjugal rights, the wife is not entitled to get maintenance from her husband. According to the learned counsel, since a Civil Court has found that the wife has without reasonable excuse withdrawn from the society of the husband, it is not open to the Criminal court to come to a conclusion that the husband has neglected or refused to maintain her. He placed much reliance on the decision of the Himachal Pradesh High Court in Hem Raj v. Urmila Devi, (1997 (2) Crime 561). On the other hand, the learned counsel for the respondents supported the order of the court below and urged that there is no ground for interference.

3. In this case the wifes claim for maintenance is resisted mainly on the ground that the husband has obtained a decree for restitution of conjugal rights against the wife. Admittedly the petitioner obtained a decree for restitution of conjugal rights against the 1st respondent in M.C.No.5/96 on the file of the Civil Judge, Madikiri. Ext.D1 is the copy of the judgment in M.C. 5/96. It is gatherable from Ext.D1 that the decree was obtained ex parte. According to me, merely because the petitioner has obtained an exparte decree for restitution of conjugal rights against the wife, her claim for maintenance cannot be rejected. No doubt, in Hem Raj v. Urmila Devi (1997 (2) Crimes 561) it has been held that once a civil court has considered the matter after contest by both the parties and come to a conclusion that the wife has without reasonable excuse withdrawn from the society of the husband, it is not open to the Criminal Court to come to a conclusion that the husband has neglected or refused to maintain her. According to me, the decision referred to above is not applicable to the facts of this case. In this case, as stated earlier, the decree for restitution of conjugal rights passed against the wife was obtained ex parte. It is gatherable from the evidence in this case that the wife could not contest the suit for restitution of conjugal rights because she is staying away from the husband and she had no sufficient means even to contest the proceedings. It is in evidence that the wife is now living with her mother at Hidayathnagar and she has no means to contest the proceedings. Under these circumstances it cannot be said that Ext.D1 decree is a bar to the consideration of the petition under Sec. 125 of the Code of Criminal Procedure.

4. In Hem Raj v. Urmila Devi (1997 (2) Crimes 561) the court has found in a contested proceeding on the basis of the evidence that the wife had no just or reasonable excuse to withdraw her society from the husband. The said decision is not applicable to the facts of this case because Ext.D1 proceeding was not a contesting proceeding and the decision of the court was not based on evidence. In this connection it is relevant to note the decision of the Karnataka High Court in K. Narayanan Rao v. Bhagyalakshmi (1984 Crl.L.J. 276). In that case the wife did not have sufficient opportunity to contest the proceeding for restitution of conjugal rights. She did not have adequate means even to contest the proceeding. In such situation, the court held that the husband obtaining an order of restitution of conjugal rights will not prevent the wife from instituting the proceeding under Sec. 125 of the Crl.P.C. In Babulal v. Sunitha (1987 Crl.L.J. 525) the Madhya Pradesh High Court held that Sec. 125 of the Code of Criminal Procedure should be given liberal construction and in the absence of any statutory bar the wifes application cannot be rejected merely because the husband has obtained a decree for restitution of conjugal rights against her and she declines to comply with it. In that case the decree for restitution of conjugal rights was an ex parte decree. It is also relevant to note the decision of this Court in Gopala Pillai v. Padmini Amma (1978 KLT 485). In that case a husband had obtained a decree for restitution of conjugal rights against the wife. Thereafter he filed a petition for dissolution of the marriage on the ground that the wife did not comply with the decree for restitution of conjugal rights. That petition for dissolution of marriage was allowed. Thereafter the wife filed an application for maintenance under Sec. 125 of the Crl.P.C. against the husband. It was held that the decree for restitution of conjugal rights is not a bar to the claim of the wife for maintenance under Sec. 125 of the Code of Criminal Procedure.

5. On a consideration of the facts and circumstances of this case, I am of the view that the ex parte decree for restitution of conjugal rights obtained by the petitioner against his wife is not an absolute bar to the consideration of the petition under Sec. 125 of the Crl.P.C. In Ext. D1 there is no finding on the basis of the evidence that the wife had no just or reasonable excuse to withdraw from the society of the husband. The lower court has found that the petition had treated his wife with cruelty while she was in the matrimonial home. The wife is fully justified to stay away from her husband and claim maintenance. It follows that the order passed by the Chief Judicial Magistrate granting maintenance to the 1st respondent is clearly sustainable. The 2nd respondents claim for maintenance is not seriously disposed.

I see no infirmity in the order of the lower court. This revision is groundless and is dismissed.