1. Although the question raised in this appeal could have been raised after final decision by the Court of first instance, the appellant has chosen to prefer this appeal and raised the question whether the execution application is maintainable. The facts are that a decree for maintenance was obtained by a Hindu wife against her husband. The enforcement of the decree is sought by the execution petition presented by the wife. The husband's plea in answer to the petition was that after the decree, the wife came to live with him and consequently the entire proceedings including the decree must be deemed to be no longer effective.
2. The District Munsif held that the plea of the husband being in the nature of a post-decretal arrangement which was not certified to the court, the levy of execution could not be denied. On appeal, the learned District Judge held that if, in fact there was a resumption of cohabitation, the decree ceases to be exeuctable. The opinion of the learned District Judge is based upon the legal position enunciated in Vasantam Venkayya v. Vasatam Raghavamma. LIR (1942) Mad 24 = (AIR 1942 Mad 1). Inasmuch as there was no enquiry into the question whether infact cohabitation was resumed, the learned District Judge remanded the proceedings to the Court of the first instance for enquiry into the question formulated by him.
3. The two questions formulate by the District Judge relate to the position whether subsequent to the decree the appellant and the respondent lived together resulting in the resumption of cohabitation. The two questions framed by him are inter-related and both of them cover in substance the same ground. The plea of the wife was that her visit to the husband's house was only for the collection of the decretal dues and she stayed on for sometime as she was being put off from time to time by the promise of the husband that the liability would be met. This plea amounts to. saying that though she was physically present in the conjugal home, her stay there is no sense constituted a cohabitation. The learned District Judge, in my opinion, very proceedings for enquiry into the questions formulated by him.
4. It is against this order of remand that the present appeal has been filed on behalf of the decree-holder. The first submission made by the learned counsel is that the resistance to execution being based on an uncertified post-decretal arrangement, the plea cannot be enterlained. But this argument misconceives the true position. As pointed out by Leach. C.J., in LIR (1942) Mad 24=(AIR 1942 Mad 1) (supra), the reliance on the provisions of the Civil Procedure Code in circumstances like the present is misplaced. The observations of the learned Chief Justice may be read here;-
'The present case in not concerned with a matter of procedure or the adjustment or satisfaction on a decree. The question is whether the court is to disregard a sound principle of law and enforce a decree the basis of which has by the action of the parties themselves been demolished.'
The learned Chief Justice went on to say that by returning to her husband the respondent became disentitled to claim maintenance against him. He further observed that the decree which the wife obtained must be regarded in the circumstances as having become ineffective.
5. The attempt of the learned Counsel for the appellant was to distinguish the ratio of this decision on two grounds. Firstly, he has urged that it was for a short period that the wife returned to the husband's house and therefore, the effect of the decree could not be said to have been neutralised or set at nought by the short visit. I am of opinion that this is not the true criterion. The principle is whether there has been resumption of cohabitattion so as to demolish the effect of the decree. Whether there has been resumption of the cohabitation or not does not depend upon the duration of the stay. It rather depends on the animus of the parties and their mental attitude in coming together again.
6. The second aspect urged by the learned counsel is that a distinction has to be drawn between cases where the decree for separate maintenance has been made on grounds of cruelty and neglect and instances where the foundation of the decree for separate maintenance is that the husband has taken a second wife. I do not think the distinction is one of substance or one based on principle. In either event, when cohabittion is resumed, there is a waiver on the part of the wife of the cause of action on which the suit and the decree were founded. Whatever might be the ground on which the decree has been obtained, the same result follows, if subsequent to the decree there is resumption of cohabitation.
7. Learned counsel drew my attention to the decision of a Division Bench in Meenakashi Ammal v. P. S. Muthuikrishna Chettiar, : AIR1961Mad380 . In that case, while doubting the applicability of the English rule to Indian conditions, the Division Bench directed the remand of the case for an enquiry into the question whether there was, in fact resumption of the conjugal life as pleaded by the husband It cannot therefore be urged that the direction given by the learned District Judge is inconsistent with the ruling in : AIR1961Mad380 (Supra).
8. Rajamannar, C.J. who delivered the Judgment of the Division Bench observed at page 382 that is was doubtful whether the rule based on English Matrimonial law would apply to the case of a consent decree like the decree. which was the foundation of the plaintiff's claim in that suit. It is difficult to understand the rationale of this distinction. Whether it is a consent decree or one made or one passed on the adjudication by the court in either case, the question is whether its effect is not demolished by the subsequent conduct of the parties. Although the correctness of the principles accepted by Leach, C.J., in LIR (1942) Mad 24 = (AIR 1942 Mad 1) was doubted, the ground on which the doubt was expressed was not made clear. I am therefore, unable to regard the pronouncement in : AIR1961Mad380 as detracting from the validity of the principle in the earlier case. Numerous decisions of the Madras High Court follow the decision in LIR (1942) Mad 24 = (AIR 1942 Mad 1) which is based on common sense and also an grounds of public policy. It is unnecessary to refer to the subsequent pronouncements.
9. As pointed out in Hidden v. Haddon. (1887) 18 QB 778 the effect of a reconcliliation of married persons after separation is that the reconcilation entirely does away with the effect of the decree. The observations of Lord Eldon in an earlier case are recalled by the Court in (1887) 18 QB 778. Lord Eldon pointed out that the rule rests on the ground of public policy, as it must not be permitted to parties, to hod good whenever they chose to live separate. The doctrine that a resumption of cohabitation annuls the effect of the decree is based on a ground of public policy. The law does everything to promote and preserve conjugal amity and therefore it discourages private arrangements between the parties the effect of which is to allow the spouses to live separately after a decree for maintenance is made the parties resume conjugal life with the intention that the decree is to become operative whenever they choose to separate again, the effect of it is to allow them to make private arrangement of separation.
It is this situation that the law intends to prevent by the recognition of the rule that a resumption of the cohabition puts and end finally to the decree for mainteance. The rule that the vailidty of the decree lapses when conjugal life is resumed is based not only on common sense but on grounds of public policy also. The doubt cost on the applicability of the rule of English law in cases arising in this country has not been eluciadated by Rajamannar, C.J. with reference to any principles or statutory provision. I am, therefore, unable to accept the argument of the learned counsel for the appellant that the validity of the Division Bench decision in LIR (1942) Mad 24=(AIR 1942 Mad 1) is undermined or shaken.
10. In view of the decision of the Division Bench in LIR (1942) Mad 24=(AIR 1942 Mad 1) the appeal must be dismissed. I direct the parties to bear their own costs in this appeal. Leave to appeal is granted.
11. Appeal dismissed.