A. Sambasiva Rao, Ag. C.J.
1. Rather a ticklish question as to the interpretation of Sub-sections (4) and (5) of Section 488 of the old Criminal Procedure Code, which were verbatim reproduced in Sub-sections (4) and (5) of Section 125 of the present Code arises in this case.
2. A wife presented an application under Section 488 for maintenance against the husband. The husband raised several objections in his counter to the granting of maintenance, but living in adultery was not one of them. However, he alleged some adultery in his evidence. He was also cross- examined on that aspect and finally, the Court disbelieved his evidence about adultery and repelled that plea. In consequence on 30lh of December, 1971 it awarded maintenance at the rate of Rs. 50/- per month. After some time, she filed an application to enforce it, and an ex parte order was granted in her favour. This ex parte order to enforce it was set aside in appeal and the husband was given an opportunity to raise his defence to the enforcement. He accordingly filed a counter to the enforcement saying that the wife was living in adultery,
3. The learned Magistrate without holding any enquiry, directed that enforcement should be proceeded with. In appeal, the learned Sessions Judge partly allowed the appeal and dismissed it in the other part. While upholding the right of the wife to enforce the order from the date of the application, namely, 14-10-1969 upto 30th of December 1971, which is the date of the order, the court below set aside the trial Courts direction to proceed with the enforcement of the maintenance due from 30th December, 1971, and remanded the matter to the Magistrate for enquiry into the defence set up by the husband. Against this order of the learned Sessions Judge dismissing the appeal to the extent of the maintenance from 14-10-1969 till 30th of December, 1971, the husband has preferred this Criminal Revision case.
4. Sri V. Madhava Reddy, learned Counsel for the husband-petitioner lays strong emphasis on Sub-section (5) which is in the following terms:
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.
Once it is shown that the wife is living in adultery, this sub-section requires that the very order should be cancelled with the result that it cannot be enforced even from the beginning. He particularly relies on the words ''the Magistrate shall cancel the order', which could only mean, according to the learned Counsel's reading of the subsection, that the order could not be enforced even for the period before the making of the order.
5. Plausible and reasonable, as this argument looks at first look, on a closer examination of Sub-section (5) and also the preceding Sub-section (4) I am afraid I cannot uphold this contention as a valid one. Subsection (4) is in the following terms:
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 arc living separately by mutual consent.
It is immediately seen that the circumstances or conditions under which a wife loses her right to receive an allowance, or runs the risk of having the order cancelled, are couched in precisely the same language in both the sub-sections. But, at the same time, it should be noticed that the two subsections deal with different situations. While Sub-section (4) refers to the period when an application is originally made and before the order is passed Sub-section (5) refers to the period subsequent to the passing of the order. It is in the light of the two distinct periods with which the two sub-sections deal that the identical language used to define the circumstances disentitling the wife to receive maintenance should be understood. Both of them refer to continuous present tense by using the words 'is living in adultery or refuses to live with her husband, or it both the spouses are living separately by mutual consent.' At the same time, they should be understood with reference to the periods for which they are specifically made applicable in the sub-sections. Understood from this perspective, it is manifest that when a wife presents her petition for allowance, the husband can defeat her claim, if he proves that she was then living in adultery etc. Then she will not get any order. Under Sub-section (5), the continuous present tense is once again I used but used in relation to the period subsequent to the passing of the order. It therefore follows that if the wife is living in adultery etc. subsequent to the passing of the order, then alone, the order shall be cancelled. The effect of cancelling the order would be from the date of the order because it is in respect of that period that Sub-section (5) deals with. Even if that is proved, it cannot take away the right of the wife to receive maintenance prior to the passing of the order and from the date of the application. The effect of the words 'shall cancel the order' in Sub-section (5) is only to nullify the order from the date when it was passed. So, the wife will be entitled to get maintenance upto the date of the order.
6. The same conclusion may be arrived at on the basis of another reasoning. Though it was not raised in the defence to the original petition, the question of the wife living in adultery did arise even before the order was passed. The Court did not believe the evidence in this behalf and so repelled this part of the husband's case. So, that decision becomes res judicata and it cannot be reopened. That is why the learned Sessions Judge allowed the appeal only in respect of the period subsequent to the passing of the order.
7. For the reasons, I do not see anything wrong in the judgment of the learned Sessions Judge. Since the wife has not preferred any revision against that part of the judgment, which is against her, that order is affirmed, and this Criminal Revision case by the husband is dismissed. There will be no order as to costs.