1. This is a reference by the Sessions Judge of Bijapur in certain maintenance proceedings.
2. On January 15, 1940, the opponent Gulappa was directed to pay maintenance to his wife Sangawa at the rate of Rs. 2 a month. Even at that time he alleged that his wife was living in adultery with one Anya, but the evidence which he produced on the point was then considered insufficient. The opponent did not pay the maintenance ordered, and on January 14, 1941, Sangawa applied to enforce the order under Section 488(5) of the Criminal Procedure Code. In reply to the notice the opponent appeared and contended as before that his wife had been and was living in adultery with the said Anya. After hearing the evidence on the point the Magistrate cancelled the order for maintenance on September 25, 1941. The effect of this was that Sangawa's application to enforce the order was rejected.
3. Both the trial Magistrate and the Sessions Judge, to whom an application was made in revision, accepted the evidence as to the wife's adultery, but the Sessions Judge took the view that the Magistrate ought to have made-an order for payment to Sangawa of the arrears of maintenance up to the date of cancellation of the order. He relied on Bhag Sultan v. Muhammad Akbar Khan A.I.R  Lah. 99 which was followed in Tan Bala Sukla Baidya v. Kabal Ram Sukla Baidya  1 Cal. 509. In the first of these cases Mr. Justice Zafar Ali held that where a wife who had been granted maintenance sued for recovery of arrears due and then an order cancelling the maintenance on the ground of adultery was afterwards passed, the cancelling order could not have retrospective effect so as to disallow the prior allowed maintenance and that the maintenance order stood good until it was cancelled. This case was followed by Mr. Justice Biswas in Tari Bala Sukla Baidya, v. Kabal Ram Sukla Baidya, These are both decisions of single Judges. In neither case have any reasons been given, nor is there any discussion of the language of section 488. We find ourselves unable to accept these rulings as correct in so far as they appear to lay down that an order for maintenance is to be treated as a good and executable order until it is cancelled or set aside.
4. It is necessary to examine the language of the various provisions of section 488. Clauses (2) and (2) deal with the making of orders for maintenance to wives and children. Clause (3) says that if any person so ordered fails without sufficient cause to comply with the order, the Magistrate may enforce the-order in the manner there provided. It is clear from this that the order cannot be enforced in the manner provided if sufficient cause for non-payment: is shown, and that must apply to arrears of maintenance due under an order. Clause (4) says: 'No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery.' The general language here employed seems to make this clause applicable to any sum receivable by a wife by way of maintenance including arrears of maintenance. So that the effect of Clauses (3) and (4) together is that on proof that the wife is living in adultery the Magistrate will be justified in refusing and indeed bound to refuse to execute an order for maintenance, quite apart from the question whether the order has been cancelled or set aside.
5. Then there is Clause (5) which says this: 'On proof that any wife in whose favour an order has been made under this section is living in adultery, ...the Magistrate shall cancel the order.' It is not said that the Magistrate shall refuse to execute, or refuse to execute further, and Clause (5) we think is not concerned with the question of execution at all. It provides for cancellation of the original order for payment, which is quite a different thing from refusing to execute it. It is by no means clear that the use of the word 'cancel' (which occurs in Section 489 also) necessarily implies retrospective effect, and Mr. Hungund who appeared for the opponent did not in fact argue that the order had retrospective effect. 'Cancel' may mean 'put an end to' or 'terminate' rather than 'set aside'. But this point is immaterial if the execution of the original order is barred under Clauses (3) and (4).
6. The view we take that an order for payment of maintenance may be or become incapable of execution, quite apart from the question of cancellation, is supported by U Ba Thaung V. Ma Aye I.L.R (1932) Ran. 194 That was a case in which an order had been made for maintenance of a child and an application was made to enforce the order after the child had become a major. Objection to the execution of the order was taken on this ground, but the Magistrate refused to consider it and held that until the order was set aside under Section 489 the order must be enforced. In revision the High Court held that this was wrong. In the course of the judgment it was observed (p. 198):
A warrant can only issue when the person ordered to pay has failed to do so without sufficient cause. The words 'without sufficient cause' are very wide and seem to us to justify the raising of a plea that the order has become 'spent' owing to the child for whom the maintenance was ordered having attained the age of majority and being able to maintain itself.... We do not consider it can have been the intention of the Legislature that an order which obviously is spent can still be enforced until the person affected thereby shall have made a formal application under the provisions of section 489. The fact that an order is so spent seems to us to be sufficient cause within the meaning of Clause (3) of section 488.
7. The position is the same in our opinion if the order for payment of maintenance instead of becoming spent is incapable of execution by reason of Clauses (3) and (4) of Section 488. Reference may also be made to the cases in which it has been held that when there is a divorce maintenance ceases to be payable as from the date of the divorce: In re Abdul Ali Ishmailji I.L.R (1883) Bom. 180 and Shah Abu Ilyas v. Ulfat Bibi I.L.R (1896) All. 50.
8. For these reasons we think that the Magistrate in this case would not have been justified in making an order for the payment of the arrears. That being so we see no ground for interfering and return the papers to the Sessions Judge.