(1) The sole question that arise for decision in this reference by the First Additional Sessions Judge, Dharwar is whether a husband can raise a plea that his wife has been living in adultery since the date of the Order for maintenance, during the course of the proceedings for enforcement of the order of whether he should file a separate application for cancellation of the order.
(2) The facts leading to this reference are not in dispute. The respondent Shantadevi filed an application on 25-2-1962 against her husband Shivasankar for maintenance on the ground that her husband had neglected and refused to maintain her by driving her out of house. While denying this allegation, the husband pleaded that his wife had been living in adultery and that she was not entitled to any maintenance. On the date of hearing the husband remained absent and an ex parte order allowing maintenance at Rs. 30 per month was passed in favour of the wife on 13-8-1963. The husband's application for setting aside the ex parte order on the ground that he had been prevented by illness from attending the Court on the date of hearing was dismissed by the Magistrate. The wife filed an application under Section 488(3) of the Code of Criminal Procedure for recovery of Rs.180/- towards arrears of her maintenance. The husband appeared and pleaded that his wife had been living in adultery even after the date of the maintenance order and he was therefore not liable to pay her any amount. The learned Magistrate overruled this objection on the ground that a similar defence had been taken by the husband in the main petition and that in his opinion the objection was intended to delay and defeat the claims of the wife.
(3) Being aggrieved by this order, the husband moved the Sessions Judge by an application (Criminal Petition No. 33 of 1963) questioning the correctness of the order passed by the learned Magistrate. The Sessions Judge took the view that it was open to the husband to prove that his wife had been living in adultery since the date of the order and that the order for execution passed against the husband without enquiry into his contention was opposed to law. That is why he has made the present reference.
(4) Mr. Havanur appearing for the husband has tried to support the view expressed by the learned Sessions Judge. Mr. Kothavale has pleaded for the view taken by the Magistrate. He has contended that it is not open to the husband to raise the contention of adultery in an enforcement proceeding and that the proper course for him is to make a separate application for cancellation of the order. It is obvious from the decisions cited by both the Advocates in support of their conflicting contentions that there is a divergence of opinion between the High Courts on the question arising for decision in this case.
(5) In order to examine the merits of the contentions raised by the parties, it is necessary to refer to the relevant Sub-sections of Section 488 Cr.P.C. Sub-section (1) firstly defines the liability of a husband to maintain his wife or his legitimate or illegitimate child unable to maintain itself. It lays down that a person having sufficient means will be liable to pay separate maintenance to his wife and children if it is shown that he has neglected or refused to maintain his wife and legitimate or illegitimate child unable to maintain itself. Secondly it enumerates the classes of Magistrate who are competent to order the husband or the father as the case may be, to pay a monthly allowance for the maintenance of his wife or child. It lastly imposes a limit on the powers of the Magistrate in the fixation of the monthly allowance by laying down that the monthly rate of the allowance shall not exceed Rs. 500 in the whole Sub-section (2)confers discretion on such Magistrate to make the monthly allowance payable either from the date of the order or from date of application.
(6) Sub-secs. (3) to (5) have a bearing on the point raised for decision in this case. They read as follows:--
'(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one moth or until payment if sooner made:
Provided that, if such person offers to maintain his wife on condition of her living with him, and the refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
If a husband has contracted marriage with another wife or keeps a mistress it shall be considered to be just ground for his wife's refusal to live with him.
Provided further, that no warrant shall be issued for the recovery of any amount due under this section if she is living unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.
(4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.X X X X.'
Sub-section (6) to (8) are not material in this case and I refrain from reproducing the same.
(7) Before referring to the authorities cited at the Bar it would be helpful to ascertain the plain meaning of these provisions. I have already noted that under sub-section (1) the liability of a person to pay a monthly allowance for the maintenance of his wife or child arises on proof of his negligence or refusal to maintain any of them, when he has sufficient means to do so. Sub-section (4) refers to three circumstances on proof of which the wife will not be entitled to receive any allowance under this Section--(1) She will not be entitled to any allowance from her husband if she has been living in adultery; (2) if she refuses to live with her husband without any sufficient reason, then also she will not be entitled to any maintenance under this section; and (3) she will not be entitled to maintenance if she and her husband are living separately by mutual consent or agreement. It is obvious that any one of these grounds can be a good defence to a wife's application for separate maintenance while sub-section (1) defines the husband's liability for maintenance sub-section (4) defines the circumstances on proof of any one which the wife will not be entitled to maintenance. These two sub-sections will be involved in consideration of any claim for maintenance on a petition made by the wife under sub-section (1) of Section 488.
(8) Sub-section (3) provides for enforcement of the order, and empowers the Magistrate to resort to any of the provisions of law providing for levying of fines, while enforcing the order for maintenance. The clause in Sub-section (3) namely, 'if any person so ordered fails without sufficient cause to comply with the orders indicates that before issuing a warrant for recovery of the amount, the Magistrate has to find out whether the person liable to pay the amount of maintenance has failed to comply with the order without sufficient reason. It is therefore open to the husband against whom an application for the enforcement of the order has been made, to show sufficient reason for his failure to comply with the order. The first proviso to sub-section (3) gives further liberty to the husband to make an offer to maintain his wife on condition of her living with him. So, if during the course of an enforcement proceeding, the husband makes such an offer, it is for the Magistrate to consider the say of the wife in regard to the offer.
If the offer is acceptable, no question of enforcement of the order arises. If on the other hand, the wife refuses to live with the husband, the Magistrate has to consider whether the grounds put forward by the wife in support of her refusal are just or unjust. If he is satisfied that the grounds purpose forward by her are just, he has to reject the husband's offer and proceed to enforce the order of maintenance. If on the other hand, he comes to the conclusion that the grounds of refusal put forward by the wife are unjust, then he can refuse to enforce the order. This proviso itself mentioned that if a wife refuses to live with her husband on the ground that he has contracted a marriage with another wife or has been keeping a mistress with himself, her refusal to live with him would be just. The second proviso merely lays down the rule of limitation enjoining that all applications for enforcement of an order of maintenance shall be made within one year from the day on which the claim became due.
(9) The wording of sub-section (3) is unambiguous. The Magistrate cannot proceed to enforce the order if the husband proves that he has got sufficient reason for his failure to comply with the order for payment of maintenance. The question that arises in the present petition is whether is husband can offer to prove in the enforcement proceeding itself, that his wife has been living in adultery since the date of the order or whether he should make a separate application for the purpose. While sub-section (1) provides for the making of an application for award of maintenance allowance. Sub-section (3) requires an application to be filed whenever the order for maintenance is sought to be enforced through the court.
Sub-section (5) which is almost identical with Sub-section (4) does not contemplate the making of an application for proof of any of the factors disentitling the wife to maintenance. Mention is expressly made in the first Proviso to Sub-section (3) that if a wife rejects her husband's offer to maintain her if she lived with him, without any just grounds, it is open to the Magistrate to refuse to enforce the order. This is one of the grounds mentioned in Sub-section (5). This Sub-section enumerates the three circumstances on proof of any one of which the Magistrate may cancel the order of maintenance and they are--(1) the wife is living in adultery; (2) she refuses to live with her husband without sufficient reason and (3) she has been living separately by mutual consent. These three clauses are identical with those mentioned in sub-section (4) and the word 'sufficient cause' occurring in Sub-section (3) are sufficiently comprehensive to cover any of these grounds on the basis of which the husband can justify his failure to comply with the order of maintenance.
Considering the fact that rejection by the wife without just grounds of the offer made by the husband to maintain her is expressly mentioned as a good defence in the first proviso to Sub-section (3) for refusing to enforce the order for maintenance, I am unable to see why the other two grounds mentioned in Sub-section (5) should not fall within the meaning of the words 'sufficient cause' occurring in that Sub-section. Any one of the grounds mentioned in Sub-section (5) is a good ground, if proved, for the cancellation of the order. If the Legislature intended that there could be such an order of cancellation only on an independent application, it would have so provided. Since the grounds mentioned in Sub-section (5) form good defences against the wife's claim for maintenance, they can be raised even in an enforcement proceedings, or by a separate petition if the husband so chooses. The section is intended to provide a summary and speedy remedy for a deserted wife or a neglected child unable to maintain itself, to claim maintenance. Both social justice and stability require the husband to maintain his wife and his children. Suits for maintenance, it is common experience take a long time for decision. While the Legislature has provided a speedy remedy for the wife, it seems to have accorded an appropriate right of defence to the husband. The law does not seem to contemplate that a husband who is willing to maintain his wife should be burdened with a claim for separate maintenance. That is why he is given a further opportunity of making such offer even during the course of an enforcement proceeding. The law seems to provide as many opportunities as possible to bring the husband and wife together with undue estrangement.
(10) The view taken by the majority of the High Court is consisted with the position that the husband can plead as 'sufficient cause' in an enforcement proceeding that his wife has been living in adultery since the date of the order. The decision in Sangavva Gulappa v. Gulappa Kariyeppa, AIR 1942 Bom, 258 has been followed by many of the High Courts except the Allahabad High Court in Ram Kishore v. Bimla Devi : AIR1957All658 relied upon by Mr. Kothavale, in the case before the Bombay High Court, Sangavva had obtained an order for maintenance against her husband who had failed to pay her the maintenance amount until she made an application to enforce the order under sub-section (3) of Section 488. The husband contended that she had been living in adultery with one Anya. After hearing the evidence on the point the Magistrate cancelled the order. In revision the Sessions Judge accepted the evidence as to wife's adultery but made an order for payment to Sangavva or arrears of maintenance upto the date of the cancellation of the order. In this proceeding we are not concerned with the question as to whether the order of cancellation takes effect retrospectively so as to disentitle the wife even to the arrears that had fallen due upto that date or takes effect only from the date of its cancellation.
Considering sub-sections (3) and (4) of Section 488 Broomfield J. who spoke for the Division Bench observed.--
'............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.'
In arriving at this conclusion their Lordships approved that vie taken by the Rangoon High Court in U Ba Thaung v. May Aye, AIR 1932 Rang 94 in which it has been laid down that the order for payment of maintenance made may become incapable of execution quite apart from the question of its cancellation, on proof of any of the grounds mentioned in sub-section (4). Their Lordships of the Bombay High Court however, took the view that sub-section (5) was not concerned with the question of execution of the order. In their opinion it provided for cancellation of the original order for payment, which was quite a different thing from refusing to execute it.
That it is not necessary for the husband to get the maintenance order cancelled before pleading in the enforcement proceeding that his wife is living in adultery has found favour with the Madhya Bharat High Court in Hari Narayan v. Mt. Rani Devi, AIR 1952 Madh B. 53. In that case, Rani Devi who had obtained an order of maintenance against her husband filed an application to enforce the order under Section 488(3). The husband objected to the execution of the order on the ground that his wife had refused to live with him without sufficient cause. The sub-Divisional Magistrate and the Sessions Judge rejected his objection on the ground that it was not open to him to raise such contention when execution of the order is applied for and that if the husband desired that the order should not be executed he must first apply under S. 488(5) and get the order set aside. In the Revision Petition filed by the husband the High Court held that the opinion taken by the courts below was wrong and that the Magistrate must consider Judicially the sufficiency of the cause alleged by the counter-petitioner and make an order granting or refusing to execute the maintenance order. The Court held that the contention of the non-applicant that the application cannot be permitted to show cause against the execution of the order unless and until he got the maintenance order cancelled under Sub-section (5) could not be accepted, as such a construction would ignore the words 'failing without sufficient cause' occurring in sub-section (3) as also the provisions of sub-section (4).
The same view has been taken by the Calcutta High Court in Sm. Kalyani Debi v. Nirmal Kumar, : AIR1957Cal115 . In that case, Kalyani Debi v. Nirmal Kumar, : AIR1957Cal115 . In that case, Kalyani Debi had obtained an order of maintenance against her husband on 13-12-1954. She filed an application on 22-6-1955 for recovery of arrears of Rs. 400. The husband objected to this application contending that the wife was living a life of adultery and that she was not entitled to recover any maintenance. The learned Magistrate rejected the objection on the ground that that question had already been gone into in connection with the wife's application for maintenance and that it could not be reagitated. The attitude of the Magistrate in that case is identical with the attitude of the Magistrate in the present case. In allowing the revision petition filed by the husband, their Lordships directed the Magistrate to take evidence on the question whether the wife had been living in adultery since the date of the order for maintenance and pass suitable orders on the wife's application. Incidentally it was held, following the view taken in Laraiti v. Ram Dial, (1883) ILR 5 All 224 that where it has been already decided that the date, it is not open on general principles to the Magistrate to go into the same question over again.
(11) The view taken by the Bombay High Court in Sangavva's Case, AIR 1942 Bom 258 has also found favour with the High Court of Andhra Pradesh in Rukminibai v. Suraj Bhan Singh, : AIR1963AP407 . In that case it was contended that the words 'sufficient cause' occurring in sub-section (3) contemplated such cases as of divorce or of the passing of the order but that the plea of adultery prior to the order of payment of maintenance was not available under it. It was held, however, that when the husband comes forward with the allegation that subsequent to the passing of the order the wife has committed adulterous acts and has been leading an unchaste life, the same could be enquired into and that sub-section (5) envisages such a contention and does not impose a liability on the husband to file a separate petition for cancellation of the order. His Lordship's attention was drawn to the decision of the Allahabad High Court in : AIR1957All658 which has taken a contrary view and has been relied upon by the learned Advocate for the respondent. His Lordship observed:
'......With respect to the learned Judge, I am not inclined to agree with him as the Code does not provide the filing of a separate application by the aggrieved husband under sub-section (5). To my mind he can seek a cancellation of the order by raising a plea that subsequent of the passing of the order his wife was leading an unchaste life and thus there was sufficient cause for not complying with the order. It is difficult to appreciate how the plea that testator wife was living in adultery is distinct from the pleas open to the husband under that section.'
Mr. Havanur for the petitioner also placed reliance on another decision of the Andhra Pradesh High Court in Venkatappa Reddy v. Laxmamma, (1959) 2 Andh WR 62 which lays down that a duty is cast upon the court to enquire into the husband's offer to maintain his wife on condition of her living with him by recording evidence and could not be brushed aside merely on the ground that such offer had been made or considered at an earlier occasion intervened he original application for maintenance.
(12) I am in respectful agreement, for the reasons already stated, with the view taken by the aforementioned High Court except the Allahabad High Court. As against this view, Mr. Kothavale contented that it was not open to the Magistrate to consider the plea of the husband as the plea had been rejected in the main petition itself. It should be remembered that the present plea of the husband is defendant from the one he had taken in the main petition, in that it refers to the wife's living in adultery even after the order of maintenance in her favour. Strong reliance has been placed on the decision of the Allahabad High Court in : AIR1957All658 . This is a decision of a Single Judge and the view taken by his Lordships about the combined effect of sub-sections (3), (4) and (5) is faithfully summarised in head note (b) to the decision and it reads:
'The phrase 'fails without sufficient cause' does not include the raising of the pleas which are mentioned in sub-section (4). If it is accepted that sub-section (4) covers sub-section (3), it would defeat the very purpose of Section 488. The principle of res judicata applies as proceedings under S. 488 are of a quasi civil nature. For any cause that existed at the time when the order was passed, it s not open to the husband to have the same reason considered by the court again under sub-section (3). If any of the causes mentioned in sub-section (4) arose after the maintenance order was passed in favour of the wife, then the only course open to the husband is to apply for the cancellation of the maintenance order under sub-section (5). The language of sub-section (4) is to be read with sub-section (5) or sub-section (1) but not with sub-section (3).'
With respect, I am in disagreement with this view. While his Lordship concedes in paragraph 6 of his judgment that it is open to the court to consider under sub-section (3), the husband's offer to maintain his wife if she lived with him, he is of the opinion that the other grounds mentioned in sub-section (4) cannot be regarded as 'sufficient cause' occurring in sub-section (3). His Lordship disagreed with the following view of the Calcutta High Court in Kamala Sundari Dassi v. Nimoney Das, : AIR1953Cal343 .
'.......The failure of the husband to obtain a cancellation of the order for maintenance under section 488(5) does not stand in the way of his filing an objection under Section 488(3). If as a matter of fact, the husband is able prove the allegations which he has made in his objection, the Magistrate will not only refuse to issue a distress warrant under Section 488(3), but he should also cancel the order for maintenance under sub-section (5).'
In his Lordship's opinion the words 'fails' and 'sufficient cause' include only such grounds which show that for some reason the person against whom the order was passed was not able to carry it out'. His Lordship was further of the opinion that 'these words do not give a discretion or right to the person against whom the order is passed to decide whether the original order was justifiable or not. The order passed by a competent Court cannot be contested or challenged.' With utmost respect, I am of opinion that his Lordship seems to have placed a narrow construction on the scope of sub-section (3). As already observed, the words 'sufficient cause' are wide enough to cover such causes as would disentitle a wife to maintenance and are therefore in law sound objections for rejecting her claim for enforcement of the maintenance order. His Lordship has also relied upon the language of sub-section (4) and sub-section (5) to support the view that sub-section (4) is not to be read with sub-section (3). I have already indicated that one of the clauses contained in sub-section (3) and the construction his Lordship has put upon the effect of sub-section (4) on sub-section would be inconsistent with the circumstance viz., the clause 'when the wife refuses to live with her husband without any sufficient reason', is common to the proviso to sub-section (3) as also to the contents of sub-section (4).
In summarising what in his opinion are the circumstances which fall within the meaning of the words 'sufficient cause' his Lordships has observed--
'only such circumstances which show that the order has exhausted itself can be placed before the court. In cases where the wife has ceased to be a wife or the child has become a major and is able to maintain itself or a reconciliation has taken place between the husband and wife and she is living with her husband, it is open to the husband or the father to place the changed picture before the Magistrate with a view that the application for execution filed by the wife or the child be dismissed.'
(13) Mr. Kothavale has placed reliance on three other decisions. The decision in : AIR1957Cal115 , as already explained, does not help the respondent. The decision of the Calcutta High Court in Tari Bala v. Kibal Ram : AIR1938Cal144 does not bear on the point at issue. The question for consideration of the court in that case was whether the order of cancellation takes effect from the date of the order or has retrospective operation. The last decision relied upon by the learned Advocate is that of the Madras High Court in Narayanaswamy v. Mangaya Karasiammal : AIR1927Mad1148 . In that case an order for maintenance in favour of the wife had been made in 1907. She remained away from her husband until 1910, after which she began to live with him until 1924. Thereafter, she left her husband again and filed an application for arrears of maintenance. The husband contented that the order could not enforced in view of the subsequent event that the wife had lived with him for about fourteen years. The Magistrate upheld the contention of the husband. The wife filed another application for maintenance of the current year and it came up for consideration before another Magistrate who directed the husband to pay maintenance at the old rate. In revision his Lordship upheld this order on the ground that it was competent for the Magistrate to pass the order he did without u enquiry as it was competent for him to enforce the order until it had been cancelled. In support of this view his Lordship placed reliance on an earlier decision rendered by him in Kanagammal v. Pandara Nadar, AIR 1927 Mad 376, for the reasons already assigned, I am unable to agree with this view.
(14) In the view that I have taken of the plain meaning of sub-secs. (3), (4) and (5) of Section 488 and the concensus of the decision of the majority of High Courts cited before me, I am of the opinion that it is open to the husband to plead and prove during the proceeding for enforcement of the order for maintenance, that the wife is living adultery since the date of the order. I accordingly accept the reference, quash the order passed by the Magistrate and remit the proceedings back to him for disposal according to law after recording such evidence as the parties may lead in respect of the contention taken by the husband.
(15) Reference accepted.