Sharfuddin Ahmed, J.
1. The question that requires determination in this revision case is whether husband is entitled to resist the claim of the wife for maintenance on the ground of adultery after an order has been passed in favour of the wife i.e., at the stage of enforcement of the order. Briefly the facts of this revision may be stated:
2. The petitioner is the wife of the respondent She filed a petition, M.C. No. 20 of 1954, for maintenance against her husband contending that he was neglecting to maintain her and the minor children. The claim was resisted by the husband on the ground of adultery on the Dart of the wife. After an enquiry the wife granted maintenance at the rate of Rs. 40/- while the daughters were given Rs. 20/- each. The respondent paid the maintenance as per the orders of the Court till 5-4-1957 but subsequently stopped payment. Thereupon, the petitioner sought to enforce the order passed against the respondent in M.C. No. 20 of 1954 to recover the arrears of maintenance. The respondent filed a counter under Section 488, Clauses 3, 4 and 5 of Criminal Procedure Code admitting that an order granting maintenance had been passed against him and he was paying the same for sometime. He, however, contended that as the petitioner-wife was living an adultery and had committed several acts of adultery even subsequent to the passing of the order he was not bound to pay her maintenance -- past, present or future. So far as the daughters were concerned, he showed his willingness to pay the amount due to them under the maintenance order.
3. The point formulated for determination was whether or not the petitioner was entitled to maintenance on the ground that she was living in adultery. The learned Additional District Munsiff Magistrate, Nellore who tried the case, on a consideration of the evidence adduced gave a finding against the petitioner and thus dismissed her claim for maintenance. On the question of jurisdiction also he held that the Court was competent to hear the matter. Aggrieved by this order, the petitioner went in revision to the Sessions Judge, Nellore who refused to entertain the revision as it was a matter pertaining to appreciation of evidence. Hence the present revision case.
4. The contention of the learned counsel for the petitioner seems to be that the plea of adultery on the part of the wife cannot be raised at the stage of enforcement of the order. It is only under separate proceedings that the matter can be agitated again and the order of maintenance got cancelled. In other words, his contention is that under Section 488 (3), Cr.P.C. it is not open to the husband to seek cancellation of the order for which separate provision has been made under Section 488 (5), Cr.P.C. Section 488 (3) lays down as under:
'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 herein before provided for levying fines, and may sentence such person, for the whole at 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 month or until payment if sooner made.'
While Sub-section (5) provides that:
'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.'
5. Undoubtedly both the sub-sections contemplate a stage subsequent to the passing of the maintenance order, in the instant case, when the wife-petitioner applied for execution of the order in her favour the husband pleaded that he was not liable to pay as the petitioner was living in adultery. It is to be noted that the same plea was raised by the husband when the application for maintenance was filed but it was negatived by the Trial Court. Subsequent to the passing of the order he made some payments and it was only when the wife filed a petition for enforcing the order under Section 488 (3). Cr.P.C. that the husband came out with the same plea once again. In his written statement he gave elaborate reasons for withholding the evidence in regard to the unchastity of his wife and in para 6 has stated as under:
'The respondent submits that there are several acts of adultery and incest committed by the 1st petitioner even after the date of the order of maintenance, that the respondent strongly feels that continuing to pay the 1st petitioner the maintenance allowance is only abetting and encouraging her to lead the life of incest and adultery. Thus, the respondent is not bound to pay the 1st petitioner any amount by way of past, present or future allowance for maintenance.'
6. It is argued that this plea is not open to the respondent under Sub-section 13) of Section 488, Cr.P.C. The words 'sufficient cause' in that sub-section according to the learned counsel contemplate such cases as of divorce or of the wife joining the husband subsequent to the passing of the order which relieved the husband from the obligation to comply with the order but the plea of adultery was not available under it, The husband could only raise the objection and secure a finding in his favour under Sub-section (5).
7. It is difficult to accept this contention for to my mind the unchastity on the part of the wife subsequent to the award of maintenance can he a good ground for refusal of the husband to comply with the order. Such a plea, however, could not be available if the allegation as to unchastity had been made and negatived in the earlier proceedings i.e., if in the petition for maintenance the husband had claimed that the wife was not entitled to maintenance as she was leading an immoral life and it was found to be 'mala fide', the same plea could only be raised while enforcing the order, on the ground of 'res judicata'. But, when the husband came forward with the allegation that subsequent to the passing of the order the wife had committed adulterous acts and was living an unchaste life the same could be enquired into. Sub-section (5) envisages such a condition. It does not, however, impose a liability on the husband to file a separate petition and seek the cancellation of the order. It could be pleaded at the time when the wife was trying to seek the enforcement of the order.
8. It is rot and could not be the case of the petitioner that once an order of maintenance has been passed she was at liberty to lead a life which would not conform to the ordinary notions of morality. This would defeat the very object of the provisions of Section 488, Cr.P.C., which is meant to obviate vagrancy. In fact Section 488 (5) imposes an obligation on the wife to lead a chaste life on the pain of cancellation of the maintenance order in case it is established otherwise. It is thus beyond controversy that chastity on the part of the wife is a condition precedent to the enforcement of the order and the order is liable to be set aside in case the wife is found to be leading an immoral life, but the question is whether the plea can be raised when the wife is trying to seek the enforcement of the order. The only direct authority to substantiate the contention of the learned counsel for the petitioner is found in Ram Kishore v. Bimla Devi, : AIR1957All658 . It has been observed therein that the
'..... the words 'fails for sufficient cause to comply' cannot be stretched to include contentious pleas. 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 child be dismissed. But where the tension remains and the order is evaded on the allegation that the wife is living in adultery, it amounts to challenging the order of maintenance and is a refusal and not a failure to comply. The husband cannot be permitted to decide a contention in his own favour and then disobey the order of the Court. Such a plea cannot be heard under sub-section (3) of Section 488, Cr.P.C. It is however open to him to proceed under Sub-section (5) praying for a cancellation of the order.'
9. 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 the cancellation of the order by raising the plea that subsequent to the passing of the order the wife was living an unchaste life and thus there was sufficient cause for not complying with the order. It is difficult to appreciate how the plea that the wife was living in adultery is distinct from the pleas open to the husband under that section.
10. The case of Narayanaswamy v. Nangayarkarasiammal, AIR 1927 Mad 1118, does not help the petitioner and has not been followed in the subsequent decisions. Similar is the position in regard to the case of Laraity v. Ram Dial, ILR 5 All 224, where the learned Judge had disallowed the plea of the husband in regard to the unchastity on the part of his wife as it had been negatived on a previous occasion on the general principle of 'res judicata'.
11. It is to be noted that the husband in the instant case has specifically pleaded adulterous conduct on the part of his wife subsequent to the passing of the order and as such he was not precluded from adducing evidence to establish the said allegation. In S.G. Khandekar v. G.K. Khandekar, AIR 1942 Bom 258, it has been observed therein 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 the order for maintenance quite apart from the question whether the order has been cancelled or set aside.'
11A. The facts in the said case are somewhat similar. The plea of unchastity was pleaded even at the time when the petition for maintenance was filed, but the evidence was found to be insufficient and an order far maintenance was made. Subsequently, on an application to enforce the order, the husband came forward with the said plea and on evidence the order was cancelled.
12. In U Ba Thaung v. Ma Aye, AIR 1932 Rang 94 the words 'sufficient cause' under Section 488 (1) and (3) Cr.P.C. have been held to be very wide to justify the alleging of a plea that the order of maintenance passed in favour of a child has become spent owing to the child having attained majority and being able to maintain itself. As stated above, it is difficult to see how the words 'sufficient cause' could be narrowed down so as to exclude the plea of unchastity. Similar is the view taken by the Madhya Bharat High Court in Hari Narayan v. Rani Devi, AIR 1952 Madh-Bha. 53.
13. In view of the above discussion I am of the opinion that the plea of unchastity could be raised at the time of enforcement of the order and it was not necessary for the husband to file a separate petition for getting the order cancelled.
14. The next point raised by the learned Counsel for the petitioner is in regard to the jurisdiction of the Court. It is to be noted that the objection was not taken in the initial stages and it was only at the time of arguments in the lower court that the counsel for the respondent raised the plea which was negatived. It is based on the ground that the Court which passed the maintenance order was that of the Sub-Divisional Magistrate, Guntur whereas the petition for the enforcement of the order was filed, in the Court of Additional District Munsiff Magistrate at Nellore.
It appears that the original petition was filed in the Court of the 1st Class Magistrate, Nellore but an objection was taken in regard to his jurisdiction and a finding was given against the objector. Subsequently, the case was, transferred to the Court of Sub-Divisional Magistrate, Gudur for disposal according to law and thereupon the order was passed. It is urged that the petition for enforcement was also filed in the same Court but it was returned on the ground that it should be presented in the other Court and consequently subsequent petitions or enforcement were filed in the Court of Additional District Munsif Magistrate. I think, in view of these facts, the objection as to jurisdiction is not tenable. Further, Section 490 Cr.P.C. empowers the enforcement of order by any Magistrate in any place where the person against whom it is made may be. The plea, therefore, has to be raised.
15. The last point raised by the learned counsel for the petitioner is that the wife was entitled to get maintenance at least till the date of the cancellation of the order. This view seems to have found favour with some High Courts, but I see no justification for the view as, in my opinion, it would amount to condonation of, the conduct of the wife in part while finding it objectionable subsequent to the date of cancellation.
16. In regard to the merits of the case though It has been pleaded that the evidence on record is not sufficient to cancel the order of maintenance, I am not inclined to interfere. Unfortunately for the petitioner some of her very close relations have spoken against her disorderly conduct and there is sufficient data, oral and documentary, to substantiate the case of the husband. There appears to be nothing seriously wrong in the appreciation of evidence by the trial Court. The order of the lower Court, therefore, cancelling the maintenance of the wife not unwarranted. The revision case is accordingly dismissed.