1. This is a petition by a Hindu husband against ' an order dated 17-1-1953, of Shri N. V. R. Murty, First Class Magistrate of Dasapalla directing the sale of the petitioner's paddy in enforcement of an order for payment of maintenance to his Wife, passed against him by another Magistrate.
2. The admitted facts are as follows: The original order under Section 488 (1), Criminal P. C. directing the petitioner to pay a, monthly maintenance of Rs. 30/- to his wife (opposite party) waspassed by Shri P. Rama Rao, Magistrate, First Class, Dasapalla, on 6-5-1953. The opposite party took steps for enforcement of that order, but sub sequently on 20-8-1953 did not press for the same saying that she was reconciled with her husband.
From 20-8-1953 the two began to live together. But on 14-6-1954 the opposite party left her husband for the second time and went away to her father's place. Then, on 30-7-1954, she applied to the Court for realisation of the arrear of maintenance due to her, from the date on which she left her husband for the second time and began to live separately. Notice was issued to the petitioner under Sub-section (3) of Section 488, Criminal P. C., and he objected to the enforcement of the order on the ground that his wife was living in adultery.
The learned Magistrate rejected his petition on the ground that while taking steps under sub-section (3) of Section 488 to enforce an order of maintenance he had no jurisdiction to enquire into those matters. He further pointed out that if the allegations of the petitioner were true it was open to him to apply under Sub-section (5) of Section 488 for cancellation of the order for maintenance. Thereupon, on 18-5-1955 the petitioner filed a separate application under Sub-section (5) of Section 488, Criminal P. C, for cancellation of the order of maintenance and also asked for an adjournment of the proceeding for enforcement of the order for payment of maintenance.
The learned Magistrate refused to grant him adjournment & directed the issue of a distress warrant for the realisation of arrear of maintenance due. There was some delay due to the petitioner taking up the matter to the Sessions Judge. The petitioner having been unsuccessful there, has come up to this Court in revision.
3. The main contention of Mr. H. Mohapatra on behalf of the petitioner is that when the opposite party settled her dispute with the petitioner and began to live with him with effect from 20-8-1953, the previous order of the Magistrate dated 6-5-1953 directing payment of maintenance at Rs. 30/- per month ceased to be operative and that it would not revive when she again left her husband on 14-6-1954. Hence he urged that the order of the Magistrate, dated 17-1-1956, directing the sale of the attached paddy was without jurisdiction.
4. This revision thus involves an interesting question as to whether an order of maintenance passed under Section 488(1), Criminal P. C. in favour of a wife would not revive if, after a brief period of cohabitation, the wife again lives separately from her husband. On this question there is a sharp conflict amongst the various High Courts in India.
The Madras High Court, in Venkayya v. Raghavamma, AIR 1942 Mad 1 (A) overruled an earlier single Judge's decision of that High Court in Kanagmmal v. Dandar Nadar, AIR 1927 Mad 376 (B) and held that on the resumption of cohabitation the order or decree for maintenance became ineffective. If the wife is compelled to leave her husband after resuming cohabitation she should apply for, a fresh decree.
The learned Judges of the Madras High Court followed the decision of the Rangoon High Court in Ellen Ma Noo v. William Po Thit, AIR 1924 Rang 314 (C). Doubtless these two decisions related to 'decrees for maintenance passed by Civil Courts and not to orders for maintenance passed under s. 488. Criminal P. C. But in a later case, Munuswami Pillai v. Doraikannu Ammal, AIR 1946 Mad 222 (D) the Division Bench decision in AIR 1942 Mad 1 (A) was followed in respect of an order under Section 488, Criminal P. C.
On the other hand, the Calcutta High Court,. Parul Bala Debi v. Satish Chandra, AIR 1923 Cat 456 (E); the Lahore High Court, Mt. Zaohra Bi v. Mohammed Yusuf, AIR 1930 Lah 1043 (F); the Allahabad High Court, Pearey Lai v. Mt. Naraini, AIR 1935 All 977 (Gi and the Nagpur High Court, Coelho v. Coelho, AIR 1936 Nag 228 (H), have all taken the view that an order for maintenance will not cease to be operative merely because there was subsequent resumption of cohabitation between husband and wife though it would remain under suspension during that period. It would revive when the wife again lives separately from her husband unless and until it is cancelled by the competent authority in a proper proceeding under Sub-section (5) of Section 488, Criminal P. C.
5. With respect I am inclined to agree with the Calcutta, Lahore, Allahabad and Nagpur view and the earlier Madras view contained in AIR 1927 Mad 376 (B). Sections 488 and 489, Criminal P. C. are self-contained and they deal with the circumstances under which an order for maintenance passed under Sub-section (1) of that section may be either cancelled or varied or modified so long as the relation ship of husband and wife subsists between the parties.
Thus Sub-section (5) of Section 488 empowers the Magistrate to cancel the order for maintenance on proof that the wife in whose favour it has been made is living in adultery or refuses to live with her husband without sufficient cause. Again Sub-section (2) of Section 489 provides for cancellation of the order by the Magistrate in consequence of the decision of a competent Civil Court. That section also fully describes the circumstances under which an order for maintenance may be varied or modified.
In the absence of any provision in Section 488 or Section 489, the normal rule that a judicial order continues to remain in force until it is cancelled by the competent authority should prevail. Doubtless during, the period when there was resumption of cohabitation between husband and wife, the order may not be enforceable because Sub-section (3) of Section 488; specifically provides for a contingency where there may be 'sufficient cause' for the husband not to comply with the order for maintenance.
The fact that the husband and wife were living together may reasonably be held to be a sufficient cause for non-compliance with the order within tile meaning of this sub-section. During that period, therefore, the order becomes unenforceable and remains under suspension. But to further hold that the order has ceased to be operative owing to resumption of cohabitation seems to be not warranted by the language of Sub-section (3) or any other provision of Section 488. Doubtless, if the relationship of husband and wife ceased by virtue of divorce, the order becomes unenforceable.
6. In taking the contrary view the Rangoon and Madras High Courts have very much relied on the principles laid down in Haddon v. Haddon,, (1887) 18 QBD 778 (I) where there are observations to the effect that an order under Section 4, Matrimonial Causes Act 1878 was annulled by reason of the subsequent resumption of cohabitation between husband and wife, and it could not be enforced if she again left her husband. Apparently, the learned Judges' attention was not drawn to two subsequent English decisions in which that case was discussed and distinguished.
I may refer to Matthews v. Matthews, (1912) 3 KB 91 (J), where it was held by the majority that by virtue of the Summary Jurisdiction (Married Women) Act of 1895 an order of maintenance continued to remain in force until it was discharged by the competent authority, and that the mere resumption of cohabitation would not by itself annulthe order. It is true that in taking this view the majority were mainly influenced by the language of Section 7, Summary Jurisdiction (Married Women) Act of 1895. There were no similar provisions in the earlier Act of 1878 on which the principle laid down in Haddon v. Haddon (I) was based.
But the mere fact that the Parliament thought it fit to make such an express provision in the Summary Jurisdiction (Married Women) Act of 1895, would seem to indicate that even in England the policy of the Legislature is not to allow art order for maintenance to be annulled until it is discharged by an order of the competent Court. I may also refer to Jones v. Jones (1924) P. 203 (K) where Mathews v. Mathews (J) was followed.
7. Section 488, Criminal P. C., is a piece of beneficent legislation meant for the benefit of abandoned wives and children with a view to prevent vagrancy. The abandoned wife is put to some expenditure and harassment in applying to the Magistrate and obtaining an order for maintenance. It will not be proper to so construe that section as to cast on her the onerous burden of again applying to the Magistrate for a fresh order of maintenance merely because after obtaining the first order she was persuaded to resume cohabitation with her husband' and then, finding it impossible to live together, she again separated.
Doubtless, if the subsequent separation was without sufficient cause, it is always open to the husband to apply for cancellation of the order, under Sub-section (5) of Section 488, Criminal P. C, Hence the husband is not without any remedy, if his wife unreasonably refuses to live with him. In the present case the petitioner has in fact sought his remedy under that sub-section and I am informed that proceedings are pending before the Magistrate. But until cancellation by a competent authority, the maintenance order should remain in force.
8. I would, therefore, reject this petition.
9. I agree with the order proposed by my 'Lord the Chief justice directing rejection of the revision petition. This revision is filed against the order of a Magistrate, 1st Class, dated 17-1-1955. That order itself shows that the application disposed of by that order was after the attachment of the moveable property was effected by the Sub-Inspector of Police. The order also shows that prior to that objection, the petitioner filed previously an objection that on account of resumption of cohabitation the petition was not maintainable and it was rejected.
Against that order, a revision petition was filed before the Sessions Judge which was also rejected and the petitioner did not carry the matter further in revision to this Court. 'But after some time when the moveable properties were attached and brought to sale, he again renewed the same objection which was rejected. This revision should therefore be rejected.
10. With regard to the question of law Involved in this matter, I am not convinced that the decision in (1887) 18 QBD 778 (I) is not applicable to this case. In that case, the husband was convicted for an aggravated assault on his wife, and the Justices made an order, under Matrimonial Causes Act, 1878 Section 4, that the wife 'should be no longer bound to cohabit with her husband, and that he should pay to her a weekly sum for her maintenance. The wife subsequently resumed cohabitation with her husband for a time, and then again left him.
It was held that the order was annulled by reason of the subsequent resumption of cohabitation and that therefore the wife could not enforce payment of weekly sums alleged to have becomedue under it after she again left her husband. No. doubt this case was distinguished in (1912) 3 KB 91 (J) and (1924) 132 LT 63 (K). But those two cases proceeded on the interpretation of Section 5(a) and Section 7, summary Jurisdiction (Married Women) Act of 1895. That Act expressly provided that an order under the Act shall have the effect of a decree of' Judicial separation while 'in force', and Section 7 provided for the discharge of such an order 'upon proof of return to cohabitation.
Consequently, it was held that a husband cannot, while an order for separation exists against him undischarged, be guilty ot a fresh desertion in the event of his resuming cohabitation and then deserting his wife again, because until the discharge of the order he was not bound to Cohabit. In Jones v. Jones (K), the learned Judges, on similar facts followed the decision in Matthews v. Mathews (J). These decisions did not dissent from the views expressed in Haddon v. Haddon (I), but only 'distinguished by virtue of the latter provision contained in Section 7, Summary Jurisdiction (Married Women) Act of 1895.
The principle laid down in Haddon v. Haddon (I) was later followed in Williams v. Williams, (1904) 90 LT 174 (L) and it was held that the condonation by voluntary resumption of cohabitation had blotted out the cause of complaint, and there was nothing for the justices to adjudicate upon at the date of the order. It was also held in this case that the effect of condonation of an offence which is: specified as a ground of complaint within Summary Jurisdiction (Married Women) Act, 1895, does not depend on the wording of any section of that Act, but on the common law. Consequently,, it appears to me that the resumption of cohabitation subsequent to an order of maintenance annuls the said order under the common law.
11. Under Section 488, Criminal P. C., maintenance is ordered by a Magistrate when the husband neglects or refuses to maintain his wife and if subsequent to that order there is resumption of cohabitation and the wife lives with him, there cannot be any neglect or refusal to maintain, and if subsequently she is driven out, she must again make out neglect or refusal, as the prior allegations of neglect or refusal on which the original order was based, ceased to exist. As observed in the dissenting judgment of Ayory L. J. in Matthews v. Matthews (J), resumption of cohabitation by operation of law in consonance with the common law and apart from the statute puts an end to or discharges the original order.
Clause (5) of Section 488, Criminal P. C. enables the husband to get an order of cancellation of the order of maintenance only in cases where the wife 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. It does not provide for cancellation of the order on, the ground that the wife resumed cohabitation. This absence, in my opinion, is due to the fact that by resumption of cohabitation, the order of maintenance stands cancelled by operation of law.