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Patel Mulchand Joitaram Vs. Bai Amthi W/O Patel Mulch and Joitaram and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1968)9GLR878
AppellantPatel Mulchand Joitaram
RespondentBai Amthi W/O Patel Mulch and Joitaram and anr.
Cases ReferredHaddon v. Haddon
Excerpt:
.....of the order is made by a wife against her husband for recovering the maintenance allowance, it is perfectly open to the husband to show sufficient cause why it should not be enforced against him and such a cause as in this case would no doubt be one which would be covered within the ambit of words 'sufficient cause' referred to in section (3) of section 488 of the criminal procedure code. it is, therefore, clear that not only it would be open to the husband to show sufficient cause before any such order is enforced against him under sub-section (3) of section 488, but that it is perfectly open to him to have any such order cancelled by moving the court under sub-section (5) of section 488 of the criminal procedure code. the same comments may well apply to the decision in the case..........cause of action, or as to whether the order of maintenance passed under section 488(1) of the criminal procedure code stands until it is set aside under the provisions of the code.2. the facts giving rise to this application in revision are that the opponent bai amthi, wife of patel mulchand joitaram of visnagar, obtained an order of maintenance under section 488 of the criminal procedure code in the court of the judicial magistrate, first class at visnagar against her husband - the petitioner patel mulchand joitaram. some time after that order was passed, it appears that the panchas of their caste had collected at unjha and the panchas had directed the petitioner-husband to live separate from his father and to keep his wife and his children with him. his wife agreed to the same. a.....
Judgment:

N.G. Shelat, J.

1. A short yet an important point that arises to be considered in this revision application is as to whether in view of the reunion between the husband and wife established in the case, the order of maintenance stands exhausted itself and that the only remedy will be by obtaining a fresh order on a subsequent cause of action, or as to whether the order of maintenance passed under Section 488(1) of the Criminal Procedure Code stands until it is set aside under the provisions of the Code.

2. The facts giving rise to this application in revision are that the opponent Bai Amthi, wife of Patel Mulchand Joitaram of Visnagar, obtained an order of maintenance under Section 488 of the Criminal Procedure Code in the Court of the Judicial Magistrate, First Class at Visnagar against her husband - the petitioner Patel Mulchand Joitaram. Some time after that order was passed, it appears that the panchas of their caste had collected at Unjha and the panchas had directed the petitioner-husband to live separate from his father and to keep his wife and his children with him. His wife agreed to the same. A separate house was hired and then both of them began to live together in the same house from June 1964 to 20-10-1965. The parties began to live separate since 20-10-1965. That led Bai Amthi, the opponent, to file an application for recovering the arrears of maintenance amounting to Rs. 235-66 p. for a period from 22-1-66 to 3-5-66. It appears that she had received maintenance allowance for a period upto 21-1-66 after she had separated from her husband. In response to the notice issued to the petitioner in that proceeding, he resisted the claim inter alia contending that in view of their having lived together as husband and wife, the order of maintenance passed under Section 468 of the Criminal Procedure Code would automatically come to an end and was, therefore, ineffective and unenforceable against him. He further alleged that he was abducted by some Goondas from Mehsana and after a period of 1 1/2 months or 2 months he was left at Godhra Station by those persons. During the period of his absence, she was said to beliving in adultery with his wife's sister's husband Naranbhai and that, therefore, she was not entitled to claim any maintenance against him. The learned Magistrate raised the points for determination and in his opinion the order of maintenance passed on 21-4-64 bad not become ineffective and it stood until and unless it was set aside. He also found that she was not living in adultery and that she was entitled to recover Rs. 236-66 p. due as arrears of maintenance from her husband. In the result, he passed an order directing the application to proceed further in accordance with law. Feeling dissatisfied with that order passed on 16th March 1967 by Mr. M. M. Modha, Judicial Magistrate, First Class, Visnagar, the original opponent has filed this application in revision before this Court.

3. It is common ground that Bai Amthi had obtained an order of maintenance on 21-4-64 against her husband under Section 488 of the Criminal Procedure Code. Some time after that order was passed, both of them admittely lived together in the same house as husband and wife. The order passed on 21-4-64 was not sought to be set aside on any ground, and since they again fell out, and Bai Amthi began to live separate from her husband with effect from 20-10-1965, she claimed to recover the arrears of maintenance for a period from 22-1-66 to 3-5-66. The contention made out by Mr. Majmudar, the learned advocate for the petitioner is that having regard to the fact that both of them began to live together as husband and wife, they having been reunited after the order was passed, the basis of neglect or refusal to maintain her as contemplated under Section 488 of the Criminal Procedure Code no longer remained and the order consequently came to an end. Consequently she was not entitled to claim any maintenance under the old order passed by the learned Magistrate for the subsequent period during which she lived separate from her husband His contention further is that the order got exhausted itself and that for getting maintenance allowance on a subsequent separation, the new cause of action had arisen and that she can only claim maintenance provided a fresh order on that new cause of action is passed by the Magistrate under Section 488 of the Criminal Procedure Code. In support of that proposition, he relied upon a decision of this Court in Criminal Revision Application No. 509 of 1965 the judgment whereof is dated 4-10-66 delivered by our learned brother Raju J. He also relied upon various decisions of the Madras High Court the last being one in the case of Section Natesa Pillai v. Jayammal : AIR1960Mad515 , and one other case of U Po Shein v. Mo Sein Nya A.I.R. 1931 Rangoon 89. The decision of this Court referred to above has its basis on the Madras decision referred to above which in turn has Its basis on the earlier decision of the Madras High Court following an English decision in the case of Haddon v. Haddon (1887) 18 Q.B.D. 778. These decisions in substance lay down that if the wife comes and lives with the husband even for some days, the wife cannot be allowed to rely on the original order of maintenance and execute the same against the husband. Under Section 488, Criminal Procedure Code, living together puts an end to the order of maintenance. If the wife separates again from the husband, then she must file another petition on a fresh cause of action, and obtain an order if she satisfies the Court that there was sufficient reason to leave her husband and that he neglected to maintain her. On the other hand, it was urged that once the order is passed by a competent Court under Section 488 of the Criminal Procedure Code, the subsequent reunion or cohabitation between the husband and wife does not automatically put an end to the order. The order stands unless it is set aside or cancelled by a competent Court under the provisions of the Criminal Procedure Code. A mere cohabitation or reunion does not ipso facto put an end to the order passed by the Court. That was the view taken by this High Court in Criminal Revision Application No. 405 of 1960 the judgment whereof came to be delivered by our learned brother Bhagwati J. on 2nd March 1961 following a decision in the case of Laxman Gaju v. Sitabai Laxman : AIR1958Bom14 It appears that this earlier decision of this High Court was not cited before our learned brother Raju J. in the case referred to here above. The same view has been taken by the various High Courts in different case which we shall refer to hereafter.

4. Apart from authority, it is essential to consider the provisions contained in this Chapter XXXVI. Chapter XXXVI of the Criminal Procedure Code deals with the maintenance of wives and children and it contains three sections. Section 488 provides for an order for maintenance and the manner of its enforcement. Section 489 provides for alteration in the maintenance allowance and Section 490 provides for enforcement of order of maintenance passed under Section 488. As observed in the case of Nandlal Misra v. Kanhaiya Lal Misra : 1960CriLJ1246 , 'the relief given under this Chapter is essentially of civil nature. It prescribes a summary procedure for compelling a man to maintain his wife or children. The findings of a Magistrate under this Chapter are not final and the parties can legitimately agitate their rights in a civil Court. This Chapter is a self-contained one. It recognises the right of a child or wife to claim maintenance. It prescribes the procedure to be followed and provides for the enforcement of the decision of the Magistrate.' It may be said that it does not recognise any claim on the basis of any personal law governing the parties and the parties therefore stand governed by the specific provisions referred to in this Chapter. In order to appreciate the contentions, we may set out the relevant part of Section 488 which runs as under:

488. (1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself a Presidency Magistrate or a Magistrate of the first class may, upon proof of such neglect or refusal order such person to make a monthly allowance for the maintenance of his wife or such child, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit and to pay the same to such person as the Magistrate from time to time directs.

(2) ... ... ...(3) 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 hereinbefore provided for levying fines, and may sentence such person....

(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 refuses to live with her husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reasons she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.. ... ...Then Section 489(1) provides for alteration in allowance on proof of a change in the circumstances. Sub-section (2) thereof says that 'where it appears to the Magistrate that, in consequence of any decision of a competent Civil Court, any order made under Section 488 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.

5. Now before actually analysing Section 488, we may state that the well recognised general principle of law is that an order, whose term is not fixed, and which is not made expressly dependant upon the continued existence of some circumstance or set of circumstances, remains in force until it is cancelled. That would be prima facie applicable to orders of maintenance allowance passed under Section 488(1) of the Criminal Procedure Code. The husband may, on proof of circumstances specified in Section 488(5) or Section 489 of the Criminal Procedure Code obtain the cancellation or modification of the original order, as the case may be, and until that is done, the original order must be deemed to be still in force. In fact even a decision of a competent Civil Court does not automatically put an and to an order of maintenance passed by the Magistrate under Section 488(1) of the Code. The Magistrate, on being shown that any such decision is passed by the Civil Court, he shall cancel the order or vary the same accordingly under Section 488(2) of the Code. When that is so, it would be too much to say that it automatically stands cancelled and that way ineffective, unless in a proper proceeding it is set aside by the Magistrate.

6. What is, therefore, essential to be considered is as to whether the provisions contained in Section 488 provide for cancellation of any such order on any such ground of cohabitation between husband and wife after the order is once passed under Section 488(1) of the Code, and if that is so contemplated, it cannot be said that the order automatically comes to an end by the mere fact that the husband and wife began to live together. The argument is that the basis of the order which is neglect or refusal on the part of her husband to maintain her having gone with the reunion between the two, the order comes to an end. It is further said that the provisions do not contemplate cancellation of the order on any such ground and consequently it must be taken that an order once passed under Section 488(1) ceases to have any effect no sooner the basis on which that order came to be passed has come to an end by the subsequent reunion between the two. In our view, the provisions referred to here above do contemplate such a contingency arising, and provide for cancellation of any such order. In the first place, the provisions do not lay down anywhere that on any such contingency happening the order would automatically come to an end. The order of maintenance also does not so state. It would, therefore, stand unless it is cancelled by the Magistrate, under any of the provisions of the Code viz. under Section 488(5) or Section 489(2) of the Code. Apart from that, Sub-section (3) of Section 488 of the Code relates to the enforcement of an order and as provided therein, the Magistrate may, if any person so ordered fails without sufficient cause to comply with the order, issue a warrant for every breach of the order.... In other words, the order would be enforced by a Magistrate against a person provided he fails to comply with the order without sufficient cause. The party affected therefore gets the opportunity of meeting the order sought to be enforced against him under Sub-section (3) and if he shows sufficient cause why the order should not be enforced against him, the Magistrate has wide discretion not to enforce that order. The words 'sufficient cause' have to be interpreted not on narrow grounds such as the proof of disability to pay or the like, but those words are wide enough to include a plea that the order has been spent up owing to any sufficient cause. In the case of John P.E. Coelho v. Mrs. Blanche Coelho A.I.R. 1936 Nagpur 228, it has been held that an order under Section 488 can be attacked on wider grounds other than above since the words 'sufficient cause' have not to be interpreted in a narrow sense. As observed further in that case, reunion does not automatically vacate the previous order, and the length of time during which reunion lasts is hardly relevant. The parties may contemplate a complete permanent reunion and yet quarrel and separate again after short interval. This would also meet the argument of Mr. Majmudar of the basts of decision in A.I.R. 1931 Rangoon 89 that a wife should be able permanently to hold such an order in terrorem over her husband after a bona fide reunion. In other words, no sooner any application for enforcement of the order is made by a wife against her husband for recovering the maintenance allowance, it is perfectly open to the husband to show sufficient cause why it should not be enforced against him and such a cause as in this case would no doubt be one which would be covered within the ambit of words 'sufficient cause' referred to in Section (3) of Section 488 of the Criminal Procedure Code. We may also in this connection refer to Section 490 of the Criminal Procedure Code which gives discretion in the enforcement of any such order obtained under Section 488(1) of the Criminal Procedure Code. The words 'may be enforced by any Magistrate' used in that section are enough to give discretion to the Magistrate before the order is enforced. It is not, therefore, that once the order is passed, it shall be automatically executed without enabling the other side to show cause against any such order at the relevant time.

7. But more than that, in our view, Sub-section (5) of Section 488 of the Criminal Procedure Code includes any such remedy for having the order set aside or cancelled at the instance of the husband in such circumstances. If we turn to Sub-section (4), it obviously relates to the grounds of defence available to the husband at the time when an application for maintenance is made. Those grounds as set out therein are:

(a) if she is living in adultery;

(b) or if, without sufficient reason, she refuses to live with her husband;

(c) or if they are living separately by mutual consent.

If any of these grounds is established, the wife would not be entitled to receive maintenance allowance from her husband under this section. These grounds, therefore, relate to consideration by the Court while passing an order of maintenance under Section 488 of the Criminal Procedure Code. Then comes Sub-section (5) and it provides that on proof of any such grounds, the Magistrate shall cancel the order but those grounds are such which arise after the order is passed in favour of the wife as contemplated therein. The same grounds referred to in Sub-section (4) are repeated in Sub-section (5) of Section 488. The second ground is material for our purpose and it relates to her refusing to live with her husband without sufficient reason. It is this second ground which, in our view, amply covers the case of the present type. As already observed hereabove, the grounds referred to in Sub-section (5) relate to the time subsequent to the passing of the order under Section 488(1) of the Code. The question of her refusing to live with her husband without sufficient reason would, therefore, arise only if some reunion or cohabitation between the husband and wife had taken place subsequent to the order of maintenance passed against the husband under Section 488 of the Code. Her refusal to live with her husband then without sufficient reason therefore implies her living in reunion with her husband after the order was passed and then living separate from her husband. The ground such as of reunion or cohabitation between the two on which the order is sought to be said as nonexistent is implicit in the second ground contemplated in Sub-section (5) of Section 488 of the Criminal Procedure Code. If, therefore, they had reunited and lived together as husband and wife and if the wife had separated from her husband, the husband would avail of a remedy contemplated under Sub-section (5) by moving the Court for cancellation of the order passed under Section 488(1) of the Code. On the face of it, it may perhaps appear that no such specific words are there, but as observed hereabove, that becomes implicit in the second ground of Sub-section (5). We find support for this view in the decision in a case of Mukand Singh v. Mst. Kartar Kaur , where it has been observed that Sub-section (5) appears to contemplate the eventuality of there having been a reconciliation between the husband and wife after an order for maintenance has been made in favour of the wife and the wife subsequently refusing without sufficient reason to live with her husband. It is further held that an order once passed under Section 488 remains in force till it is cancelled on the grounds set out in Section 488(5) though on temporary reunion the operation of the order would remain suspended. It is, therefore, clear that not only it would be open to the husband to show sufficient cause before any such order is enforced against him under Sub-section (3) of Section 488, but that it is perfectly open to him to have any such order cancelled by moving the Court under Sub-section (5) of Section 488 of the Criminal Procedure Code. It would not, therefore, be proper to say, as suggested by Mr. Majmudar, that there are no provisions in the Code which would justify the Magistrate to cancel an order on any such ground of reunion as alleged by him. A similar view has been taken by the Orissa High Court in the case of Kasinath Pcmde v. Padambati Debi : AIR1956Ori199 , and by the Allahabad High Court in the case of Pearey Lal v. Aft. Naraini : AIR1935All977 . We may also observe that the same view has been taken by the Calcutta High Court in the case of Parul Bala Debi v. Satish Chandra Bhattacharjee A.I.R. 1923 Calcutta 456.

8. As already pointed out above, the decision of Raju J. is based on the decision of : AIR1960Mad515 referred to above. That decision is based on the previous Madras decision in the case of Vasantam Venkayya v. Vasantam Raghavamma A.I.R. 1942 Madras 1, which we shall presently refer to. We may, however, observe that while deciding the case, the provisions of Section 488 have not been considered. The same comments may well apply to the decision in the case of Kuppuswami Padayachi v. Jagadambal A.I.R. 1947 Madras 423 cited on behalf of the petitioner. The basis of that view is the decision in the case of Vasantam Venkayya v. Vasantam Raghavamma, A.I.R. 1942 Madras 1. This case did not relate to the provisions contained in Section 488 of the Criminal Procedure Code but related to a decree for maintenance passed in a civil proceeding. The High Court in that case held that a decree obtained by a Hindu wife against her husband for maintenance differs in no important respect from an order for permanent alimony embodied in a decree for judicial separation, and therefore when the wife subsequent to the decree resumes cohabitation with her husband, the English principle can be applied viz., that the decree becomes ineffective and cannot be enforced. If she is compelled to leave him after resuming cohabitation he should apply for a fresh decree. The Court held that the decree for maintenance obtained by a Hindu wife in a civil proceeding against her husband comes to an end and becomes unenforceable if after the passing of the decree the wife goes to live with her husband. The basis of this decision, as held by the Madras High Court is that there is no distinction between a decree for maintenance and a decree for alimony or a decree for judicial separation. The Madras High Court has proceeded on the basis of the English Law that a decree for alimony or a decree for judicial separation comes to an end and becomes unenforceable once the wife returns to the husband and resumes cohabitation. The High Court has mainly relied on the English Case in Haddon v. Haddon (1887) 18 Q.B.D. 778. This English Case has been referred to by Bavdekar J. in the Bombay Case of Laxman Gajju v. Sitabai Laxman and Anr. : AIR1958Bom14 . Bavdekar J. has considered the provisions of the English Law bearing on the point and drawn the distinction as to how the decision in Haddon v. Haddon (1887) 18 Q.B.D. 778 would not apply to an order made under Section 488 of the Criminal Procedure Code. With respect, we are in entire agreement with this distinction pointed out by Bavdekar J. in the Bombay Case and, in our opinion, the basis of the Madras decisions is, therefore, not applicable when we are considering the question of an order made under Section 488 of the Criminal Procedure Code. In the Bombay Case it has been held that the English authority which proceeded upon the words of an English statute has no application and cohabitation does not put an end to the order under Section 488 of the Criminal Procedure Code. We may also observe that this Bombay decision has been followed by our learned brother Bhagwati J. in Criminal Revision Application No. 405 of 1960 mentioned above.

9. We, therefore, come to the conclusion that once the order is passed under Section 488(1) of the Criminal Procedure Code, it subsists until it is cancelled or set aside by a competent Court. It follows therefore that in a case where after an order under Section 488 is made in favour of a wife, the wife returns and lives with her husband, the order does not stand exhausted and thereby come to an end ipso facto but it continues until the husband gets it cancelled under Sub-section (5) of Section 488 or under Section 489(2) of the Code as the case may be. So long as the reunion continues, however, the order remains suspended and the husband's right to get the order cancelled would arise if after the reunion the wife leaves her husband's house again and refuses to live with him without sufficient reason. The learned Magistrate was, therefore, right in rejecting that contention.

10. As to the other ground raised by the petitioner against the enforcement of the order, the learned Magistrate has found that she was not living in adultery as alleged so as to disentitle her from claiming the arrears of maintenance. That is a finding of fact and we do not see any justifiable reason to interfere therewith.

In the result, therefore, the order passed by the learned Magistrate is correct and the revision application fails. Rule is discharged. Stay stands vacated.


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