1. In 1921 the petitioner applied for and obtained an order against her husband, the counter-petitioner, under Section 488, Code of Criminal Procedure, for the 'payment of maintenance for herself and her daughter at the rate of Rs. 10 per mensem. Subsequently, during the years 1922-23, she returned to the counter-petitioner and lived with him, bearing him another child. She then left him again and in 1924 applied to execute the maintenance order, but her petition was dismissed. Then she came up to this Court in revision (Cr.R.C. No. 52 of 1925) and Jackson, J., cancelled the Sub-divisional Magistrate's order rejecting her application, leaving it to him either to give her arrears under the old order or, if it was found that the order was no longer in existence, to let her file a fresh application. Accordingly on 22nd August, 1925 she filed a petition for 11 months' arrears of maintenance up to that date. The learned Sub-divisional Magistrate, in the order which it is now sought to revise, held that the reconciliation between husband and wife had brought the old order to an end automatically so that it lay on the petitioner to adduce further proof that she was entitled to maintenance. The point now arising for decision therefore is whether the original order granting maintenance may be deemed to be still in existence.
2. It is a general principle of law that an order whose term is not fixed, and whose currency is not made expressly dependent upon the continued existence of some circumstance or set of circumstances, remains in force until it is cancelled; and prima facie this rule applies to maintenance orders passed under Section 488, Code of Criminal Procedure. Sub-section (5) of that section provides that in certain specified circumstances, where a wife is living in adultery, where without sufficient reason she refuses to live with her husband, or where the parties are living separately by mutual consent, the Magistrate shall cancel the order. It is also open to the Court, under Section 489, to make an alteration in the allowance-'on proof of a change in the wife's circumstances. In such cases, it will be for the counter-petitioner to obtain either the cancellation or the modification of the original order, and until he does that, the original order must be deemed to be still in force. The mere fact, for instance that a wife is living in adultery, will not bring the order to an end automatically. If it did so, there would be no need for the Court to cancel it. And similarly, the mere fact that a wife has returned to live with her husband will not have this effect, although it is true that the Code makes no provision for its cancellation upon such an event occurring. Nor does it make any provision, to take another example, for cancelling the order upon proof that the husband has divorced his wife. A case of the latter kind came before the Allahabad High Court in Shah Abu Ilyas v. Ulfat Bibi ILR (1896) A 50. and it was held to be the duty of the Court, if the plea of divorce were established, to decline to enforce the order which it had discretion to do under Section 490, Code of Criminal Procedure, and so, if a wife returns to live with her husband, it would be open to the Court to decline to enforce the order, whether or not it would have the power, in the absence of any statutory provision, to cancel it. The order would remain in suspense. This was the view in Parul Bala Debi v. Salish Chandra Bhattackarjee (1922) 37 CLJ 180. where a wife had temporarily returned to her husband and had left him again.
A mere temporary stay of this kind, though it may have suspended the operation of the order, had not the effect of cancelling it in the way that it could be cancelled under Section 488(5) of the Code.
3. A contrary view seems to have been taken by Straight, J., in the case referred to by the learned Joint Magistrate in Phul Kali v. Harnam (1888) 8 AWN 210. viz., that upon a wife voluntarily returning to her husband the order would permanently 'become ineffectual,' notwithstanding that at the date of the subsequent proceedings, she had left him again, but I think with respect, that this is not the correct position.
4. It was accordingly open to the petitioner to apply for the execution of the order as still subsisting. The counter-petitioner might then have resisted the application upon any of the grounds specified in Sub-section (5). To enable this course now to be adopted, I set aside the Sub-divisional Magistrate's order, dated 29th September, 1925 and direct him to restore to file the petition dated 22nd August, 1925 and to dispose of it in the light of the foregoing observations. If the counter-petitioner fails to show that the petitioner is now disentitled to maintenance under Sub-section (5), it will be for the Court to consider with effect from what date the payment of arrears should be enforced. Under the second proviso to Section 488(3) the Court's power extends to the recovery of arrears falling due over a period of one year next before the date of application, that date being 22nd August 1925, but it does not follow that that power should be fully exercised, and I observe that the petitioner herself only asked for the recovery of eleven months' arrears.