H.R. Krishnan, J.
1. The question in this case is whether the cancellation by the Magistrate of an order granting maintenance under Section 488, Criminal Procedure Code operates ipso facto from the date of the original order itself, and thereby disentitles the maintenance-holder to getting anything by way of arrears during the period between the original making of the order and the date of cancellation. The Sessions Judge heard the revision by the husband from the order of the Magistrate on the one hand cancelling the earlier order for maintenance and on the other granting the wife maintenance for the period between the making of the original order and the date of cancellation. The actual amount is only a small one. being the maintenance for about 11/2 month at the rate of Rs. 25.
But the principle involved is important, and as apparently there is no decision of the Madhya Pradesh High Court on this subject it has to be examined at some length. The Sessions Judge himself has made a reference recommending that the grant of arrears of maintenance might be set aside, because the cancellation ipso facto goes to the dale of the original order itself, so that during the interval there is in the eyes of law no order in force.
2. The facts of the case are quite simple. The wife who had been living with her father filed an application for maintenance under Section 488, Criminal Procedure Code and was awarded Rs. 25 a month. Now the husband came to the Court and stated that he was prepared to keep her with him and wanted a direction to that effect and a cancellation of the maintenance order. If the wife still refused to go and live with him she should get no allowance. This was done about a month and a half after the original order. At the same lime the wife wanted the maintenance allowance for the interval since for that period there was a valid order the Magistrate granted it. It is to be noted that the cancellation is without any qualification or condition. We are actually concerned with the effect of cancellation alone.
3. Section 488, Criminal Procedure Code contains different sub-clauses; but we are concerned with Sub-clause (5) and to some extent with (4).
'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 refused to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.'
There is also Sub-clause (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 refused to live with her husband or if they are living separately by mutual consent.'
There are different circumstances in which the order once passed may be cancelled; such as the wife's living in adultery, and her refusal without reasonable cause to live with the husband. Here also there may be two different situations; one is where the wife-maintenance-holder has stated to live in adultery, or has been unreasonably refusing to live with the husband sometime after the making of the order granting her maintenance. The other that it is discovered as a fact that she has been under one or other disabilities all the time. If it is a disqualification for maintenance it could be properly urged that the date on which this disqualification is found to have been incurred should be the date from which the cancellation should operate.
In other words the Magistrate who cancells the maintenance should mention the date from which it should operate; otherwise it would be the date of the cancellation itself. There may be cases in which the husband is satisfied that the wife may live separately; but after the order for maintenance is made he offers to take her back. In such a situation it would be obviously unjust to cancel the grant of maintenance with effect from the date of the original order.
4. Stated thus, the principle is simple. But there are some conflicting views expressed by the High Courts. On the one hand we have what might be called the Lahore-Hyderabad view contained in Mt. Bhag Sultan v. Muhammad Akbar Khan, AIR 1980 Lab 99 (1) and followed in Basvarala Satteyya v. Malsoor, AIR 1954 Hyd 53, and in some other cases. As against it we have what might be called the Bombay-Calcutta view which has also been that of Madhya Bharat and is contained in Sangavva Gulappa v. Gulappa Kariyeppa, AIR 1942 Bom 258. Hari Narayan v. Mt. Rani Devi, AIR 1962 Madh Bha 53 and Sm. Kalyani Debi v. Nirraal Kumar, AIR 1957 Cal 115. The Lahore-Hyderabad view is-
'The order of cancellation by the Magistrate could not be given a retrospective effect. The wife is entitled to the allowance that was due to her before the order under Sub-section 4, Section 488, Criminal Procedure Code had been made against her.' (Lahore).
'Order of cancellation of maintenance order always operates prospectively and not retrospectively.' (Hyderabad).
As against this we have-
'Where therefore an order for maintenance is cancelled on the ground of adultery, the effect of the cancellation is that even the arrears of past maintenance cannot be recovered ' (Bombay),
5. The Bombay High Court takes account of the possibility of a maintenance order being unenforceable even without a formal cancellation under Sub-section (5) of Section 488. The reference is to the Sub-section (4) which disentitles a wife who refused to live with the husband without sufficient reason or who is living in adultery. The line taken is that a cancellation in such circumstances only emphasises what is already provided by Sub-section (4) namely, that cancellation or no cancellation, the wife would not be entitled to receive any allowance. Stated in this manner there could be no reason for dissenting from the Bombay view, but in the later rulings of other High Courts it has been followed in a very generalised form.
It has not taken account of the fact that the disentitlement under Sub-section (4) can only happen when the woman begins to live in adultery, or on being invited to do so refused to live with the husband without sufficient cause immediately we are concerned with the latter and the invitation by the husband to live with him. and the wife's refusal without sufficient reason are both after the making of the order for maintenance. It would not be correct even within the framework of the Bombay decision to say that a cancellation ipso facto would disentitle the maintenance-holder to the allowance due under the order during the period before the cancellation. There may be circumstances where the disentitlement of Sub-section (4) has already been incurred before the cancellation. There may also be circumstances in which such a disentitlement has not happened and the cancellation cannot act as has been said loosely 'in a retrospective manner'
This distinction seems to have been overlooked in the ruling reported in AIR 1952 Madh Bha 53 (supra):
'Where an order for payment of maintenance which is cancelled under Sub-section (6) on proof that the wife, without sufficient reason refuses to live with her husband, is also incapable of execution on same ground under Sub-section (3) then the arrears of maintenance allowance due up to the date of the cancellation order cannot be recovered.'
The Calcutta view is also similar and it was a case of adultery resembling the Bombay case in that respect.
6. It would be remembered that the basic purpose of Section 488 is to see that a woman living separately from the husband is not tempted on account of poverty into ways of crime. On that view a maintenance due under a valid order has to be paid till it is cancelled. To hold that a cancellation under Sub-section (5) would ipso facto nullify the order from the very date on which it is made would be to frustrate that purpose and make it penal. Certainly, when there is a disentitlement incurred under Sub-section (4) even during the period before the cancellation the woman may not get the allowance. But that would be not because of the cancellation under the later subsection but on the disentitlement itself which would have to be proved with reference to the earlier period like any other fact. It may even be that the disentitlement is mentioned in the cancellation order; but that by itself cannot operate retrospectively.
7. The result of the discussion is that I would follow the Lahore-Hyderabad view and I would respectfully disagree with the generalised application of the Bombay view made in the Madhya Bharat and the Calcutta rulings On this view of the matter the Magistrate's order granting maintenance for the interval was correct. Accordingly the reference is rejected.