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Dattu Bhau Undage and ors. Etc. Vs. Tarabai Dattu Undage and Etc. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 744 of 1982 with Second Appeal No. 56 of 1983
Judge
Reported inAIR1985Bom106; 1985(1)BomCR203; 1984MhLJ224
ActsHindu Adoptions and Maintenance Act, 1956 - Sections 18 and 25
AppellantDattu Bhau Undage and ors. Etc.
RespondentTarabai Dattu Undage and Etc.
Appellant AdvocateN.D. Homvalkar and;M.A. Rane, Advs.
Respondent AdvocateBhimrao N. Naik and;Ajit P. Shah, Advs.
Excerpt:
it was adjudged that where decree for maintenance to wife had been passed, the execution of the decree could not be resisted on the ground that the husband and wife had resumed cohabitation after the passing of the decree. - - 2. before considering the dispute between the parties, i would like to state briefly the relevant facts in both the litigations. it is enforceable and no plea that there has been cohabitation in the interregnum or that there has been a compromise between the parties can hold good as a valid defence. 10. the net result of the above discussion is that both the matters fail......under s. 488. on an application under s.488 by the wife the magistrate made am 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 could resume cohabitation and the application for arrears was disposed of. subsequently 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 thd date of the original application. the husband then raised a contention that he and the wife had resumed cohabitation, and consequently the order had come to an end. held that the original order on wife's petition.....
Judgment:

1. These two matters, though unconnected with each other, can be conveniently decided by a common judgment, as a similar controversy arises in both of them.

2. Before considering the dispute between the parties, I would like to state briefly the relevant facts in both the litigations. Civil Revn. Appln. No. 744 of 1982 arises from an order passed in Special Darkhast No. 121 of 1979 that the amount of maintenance claimed in that darkhast should be recovered from the judgment-debtor. This darkhast was filed by the decree-holder- wife on the basis of a decree dt. 31-7- 1967 passed in Special Suit No. 44 of 1966. Maintenance of Rs. 100/- per month has been granted to the wife. In Darkhast No. 121 of 1979 the husband resisted the execution on the ground that after the passing of the decree the husband and the wife (viz. the judgment-debtor and the decree-holder) had resumed cohabitation and that on this count the decree for maintenance had become unenforceable. This contention was rejected by the executing Court and hence the husband- judgment-debtor filed a rivision.

3. Second Appeal No. 56 of 1983 is filed by the husband against an order for recovery of maintenance amount in pursuance of a decree for maintenance that was passed against him in Suit No. 243 of 1974. It was a compromise decree under which the husband agreed to pay Rs. 300/- per month if he would provide a separate residence and otherwise Rs. 400/- per month. The wife filed Regular Darkhast No. 88 of 1977 for executing the decree. The darkhast was opposed by the husband on the ground that the parties had resumed cohabitation after the passing of the decree and that, therefore, the decree had become inexecutable. The said objection was overruled. The judgment-debtor-husband filed Appeal No. 322 of 1980 in the District Court, Sangli. That appeal was dismissed and hence he has filed the second appeal.

4. Thus, the main controversy in both the matters is as to whether judgment-debtor-husband can resist the execution of a maintenance decree on the ground that after the passing of the decree the parties have resumed cohabitation and whether by such cohabitation the decree becomes inexecutable. Shri Hombalkar who appears for the revision petitioner and Shri Rane who argued for the appellant in the second appeal contended that the husband can, in an execution petition, allege that the decree has become inexecutable on account of resumption of cohabitation. The learned Advocates on behalf of both the sides relied upon a number of decisions of the various High Courts and it would be necessary to consider them.

5. The Madras High Court has taken the view that such a resumption of cohabitation would make the decree ineffective. For example, the head-note in the case of Venkayya v. Raghavamma, AIR 1942 Mad 1, reads as follows:--

'A decree obtained by a Hindu wife against her husband for maintenance differs in no important respect from an order for permanent alimony embodied in a decree for judicial separation, and therefore when the wife subsequent to the decree resumes cohabitation with her husband, the English principle can be applied viz., that the decree becomes ineffective and cannot be enforced. If she is compelled to leave him after resuming cohabitationshe should apply for a fresh decree.'

This was a case about the execution of a maintenance decree. The same High Court had an occasion to consider the execution of an order passed under S. 488 of the Cr. P.C. in the case if Kuppuswami Padayachi v. Jagadambal, (1947) Cri LJ 302 : AIR 1947 Mad 423, the Madraw High Court held as follows:--

'When once after the passing of an order of maintenance under S. 488 the husband and wife have resumed cohabitation, the order becomes automatically ineffective and unenforceable. No formal cancellation of that order is necessary. If there is neglect or refusal on the part of the husband subsequently, that would furnish a ground for the wife to make a fresh application, but she would not be entitled to claim the payment of maintenance on the strength of the order passed before the resumption of cohabitation.'

Similar view has been taken in a later decision in the case of Natesa Pillai v. Jayammal : AIR1960Mad515 , The Andhra Pradesh High Court in the case of B. Ansuya v. B. Rajaiah : AIR1971AP296 , by implication, held that an objection about the executability of a decree for maintenance on the basis of resumption of cohabitation is permissible.

6. It is however, material to note that this Court had an occasion to consider such an objection when raised in a proceeding under S. 488 of the Cr. P. C. 1898. The decision is : AIR1958Bom14 in the case of Laxman Gajju v. Sitabai Laxman. The head-note reads as follows:--

' Cohabitation does not put an end to the order under S. 488.

On an application under S.488 by the wife the Magistrate made am 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 could resume cohabitation and the application for arrears was disposed of. Subsequently 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 thd date of the original application. The husband then raised a contention that he and the wife had resumed cohabitation, and consequently the order had come to an end.

Held that the original order on wife's petition had nor come to an end. (1887) 18 QBD 778 distinguished.'

The matter has also gone to the Supreme Court in the recent case of Bhupinder Singh v. Daljit Kaur : 1979CriLJ198 . The Supreme Court came to the conclusion that a subsequent resumption of cohabitation would not put an end to the maintenance order passed under S. 125 of the Cr.P.C. it was held that an order for maintenance under section 125 will operate until vacated or altered in terms of the provisions of the Code itself. Such an alteration is permissible by following the procedure contemplated by S. 125(4) or (5) or S. 127. As to what would happen if appropriate proceedings are not taken is considered by the Supreme Court in the following words:--

'But until the original order for a maintenance is modified of cancelled by a higher court of is varied or vacated in terms of S. 125(4) or (5) or S. 127, its validity survives. It is enforceable and no plea that there has been cohabitation in the interregnum or that there has been a compromise between the parties can hold good as a valid defence.'

In view of the above-mentioned decision of the Supreme Court, it will nor be possible for a husband to resist the maintenance order under the Code of Criminal procedure on the ground of resumption of cohabitation.

7. It was, however urged by Shri Hombalkar and Shri Rane that the principle laid down by the Supreme Court in the above mentioned case would have no application when one has to decide about the executability of a maintenance decree passed by a Civil Court. It was contended that the executing Court can decide the question as to whether the decree has become inoperative or unenforceable on account of certain subsequent events. My attention is drawn to the observations of the Supreme Court in paragraphs 7 and 8 wherein it is held that any defence against an order under S. 125 must by founded on a provision in the Code and that such a statutory order can be demolished only in terms of the statute and not otherwise.

8. Both the Advocates viz., Shri Hombalkar and Shri Rane, contended that an order under S. 488 of the old Cr. P. C. (i.e. S. 125 of the Cri. P.C. 1973 ) would be quite different from a decree for maintenance passed by a Civil Court. It was submitted that an order passed by a Criminal Court would be a sort of a summary remedy so as to avoid any vagrancy of a wife by providing her urgent maintenance. I am not, however, able to accept the contention that a summary remedy of maintenance under the Cri. P.C. would stand on a different footing from a decree of a Civil Court, particularly when one has to decide the executability or otherwise of the maintenance order on account of the alleged resumption of cohabitation. In my opinion, a decree for maintenance has to be executed as per the terms thereof and there cannot be any modification in the decree. The question as to whether such modification is permissible is considered by this Court in the case of Maharana Shri Ranmalsangji v. Bai Shri kundankuwar, ILR (1902) Bom 707. There was an unconditional decree for maintenance in favour of a wife. She applied for execution of that decree. The judgment-debtor-husband raised an objection that by reason of the conduct of the wife she had forfeited her fight or maintenance. The Division Bench of this Court has held that no modification of a decree can be allowed in execution thereof on grounds not recognised in the decree itself and that it would be necessary to file a separate suit.

9. It is true that sub-secs. (4) and (5) of S. 125 as also S. 127 provide a remedy for alteration of the maintenance order passed by a Criminal Court. However, that would not be a distinguishing factor for the purpose of holding that execution of a Civil Court's decree can be resisted by raising a contention that the parties have resumed cohabitation. S. 18 of the Hindu Adoptions and Maintenance Act has made provision for the separate maintenance of a wife. S. 25 of the said Act provides for the alteration of the amount of circumstances. It is needless to say that such an alteration would also include total quashing of the maintenance order if the circumstances are alleged and proved that such a quashing is necessary. The provisions of Ss. 18 and 25 of the Hindu Adoptions and Maintenance Act are practically similar to the provisions of Ss. 125 and 127 of the Cri. P.C. Thus, on principle there cannot be any difference between an order by a Criminal Court under S. 125 and a decree by a Civil Court. In view of this position, it will be very difficult for me to accept the contention of the judgment-debtors in both these matters that they can successfully resist the execution of the decree on the ground that the husband and wife have resumed cohabitation after the passing of the decree.

10. The net result of the above discussion is that both the matters fail. Rule in Civil Revision Application No. 744 of 1982 is discharged. Interim stay granted by this Court stands vacated. Second Appeal No. 56 of 1983 is dismissed.

11. Order accordingly.


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