1. This is a reference made to this Court by the learned Second Additional Sessions Judge, Poona, and it arises from an application made by the husband. It appears that the petitioner's wife sued him for maintenance, and the Magistrate made an order allowing the wife maintenance, at the rate of Rs. 20 per month and each child at Rs. 15 per month. The wife then made an application for arrears of past maintenance, when there was a compromise between the parties, because the parties agreed that they would resume cohabita-tion. and that application for arrears was disposed of. Subsequently it appears that the wife and husband cohabited for some time, but then they again separated, and the wife made an application again for arrears of past maintenance from the date of the original application, namely, the 14th of April 1953. The husband then raised a contention that he andthe wife had resumed cohabitation, and consequently the order had come to an end. The order which the Magistrate passed upon this was that in that case the husband's remedy was to make an application under Section 489. Then the Magistrate went on to say that the husband had agreed to pay the wife maintenance at Rs. 20 per month and each child Rs. 10 per month, and that showed that he did not wish to get-the old order cancelled. The Magistrate then gave the wife arrears for seven months at the rate which the husband said he would pay. namely, Rs. 40 per month. This was on the 16th of August 1955.
2. The husband then made the application from which the present reference arises say-ing that the order upon the application of the 14th of April 1953 had come to an end. because he and the wife had lived together. The wife raised a contention that the application which the husband had made was not a bona fide one; the husband did not as a matter of fact wish to reside with the wife, and he had resided with her only for a short time. The learned Magistrate to whom the application was made dismissed this application saying that it had already been decided in the previous application that the order passed on the wife's first application under Section 468 has not been cancelled.
3. The learned Sessions Judge has made this reference to this Court for setting aside this order. The learned Magistrate does not seem to be correct when he observed that it was decided in the other case that the order had not been cancelled. What appears to have happened was that the learned Magistrate to whom the application for arrears of maintenance was made expressed the view that if the husband wanted to contend that the old order had come to an end, his proper remedy was to make an application under Section 489. Upon that view being expressed, the husband seems to have-thought fit not to press further his contention that the order on the wife's maintenance petition had come to an end, and then he said that he would agree apparently in respect of the period for which the wife was demanding arrears of maintenance to the wife at Rs. 20 and each child Rs. 10 per month. The Magistrate thereupon made an order for payment of Rs. 280. There is nothing in that order from which one can come to the conclusion that the Magistrate decided that the order upon the maintenance petition of the wife had not come to an end owing to the subsequent co-habitation between the husband and the wife,
4. it seems to me, however, that even, though the learned trial Magistrate was in error in not deciding the contention for himself, there are no reasons for saying that the order on the wife's petition had come to an end. The authority in support of this contention is the English case of Haddon v. Haddon (1887) 18 QBD 778. Now it has got to be remembered that in that case Section 4 of the Matrimonial Causes Act, 1878, provided:
'If a husband shall be convicted summarily or otherwise of an aggravated assault withinthe meaning of the statute 24 and 25, Vict. c. 100, Section 43, upon his wife, the Court of Magistrate before whom he shall be so convicted may, it satisfied that the future safety of the wife is in peril, order that the wife shall be no longer bound to cohabit with her husband; and such order shall have the force and effect in all respects of a decree of judicial separation on the ground of cruelty; and such order may further provide' (inter alia) 'that sum husband shall pay to his wife such weekly sum as the Court or Magistrate may consider in accordance with his means.'
When consequently it was shown that the husband and wife had resumed co-habitation for a time, the view was taken that the order which had the legal effect of a decree of judicial separation came to an end by the same circumstances which would bring to an end a decree of judicial separation itself. That as a matter of fact was what was observed in the judgment in that case at the bottom of p. 780. The reasoning, therefore, of the English cause is that the order for maintenance was after all only an ancillary order to the original order made in the case which allowed the wife not to cohabit with her husband, if she did not want to. This order was given the full force and effect of a decree for judicial separation, though it was not actually a decree for judicial separation. Judicial separation admittedly would come to an end under the English Law with resumption of co-habitation between husband and wife. It was consequently held that an order which had the legal effect of a decree of judicial separation must also come to an end with the husband and wife resuming co-habitation. If it came to an end, then the order for maintenance which was merely an ancillary order to make when the original order allowing the wife not to cohabit with her husband was passed must also come to an end.
5. That is not the effect of an order under Section 488 which would be no answer to a suit for restitution as a decree for judicial separation would he. Consequently the English authority which proceeded upon the words of an English statute has no application. That cohabitation does not put an end to the order under Section 488 is the view which has been taken by a number of High Courts in India; see John P. E. Coelho v. Mrs. Blanche Coelho ILR 1937 Nag 230; AIR 1936 Nag 228; Pearey Lal v. Mt. Naraini : AIR1935All977 ; Parul Bala Debi v. Satish Chandra Bhattacharjce AIR 1923 Cal 456; and Mt. Zauhra Bi v. Muhammad Yusaf AIR 1930 Lah 1043. The learned advocate, who appears on behalf of the husband, draws my attention to a case of the Madras High Court, which has ever-ruled the earlier decision of the Madras High Court in Kanagammal v. Pandara Nadar : AIR1927Mad376 . That decision follows the English case which has been referred to above and with respect it does not seem to have been noticed that the English decision went upon the language of the statute under which the original order came to be passed.
6. in the result, therefore, there will beno order upon the reference.
7. Order accordingly.