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Perundevi Ammal Vs. Amavasikan and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 2202 of 1953
Judge
Reported inAIR1957Mad113
ActsHindu Law; Code of Criminal Procedure (CrPC) , 1898 - Sections 488 and 490
AppellantPerundevi Ammal
RespondentAmavasikan and ors.
Appellant AdvocateD. Ramaswami Iyengar and ;P.R. Varadarajan, Advs.
Respondent AdvocateN.R. Raghavachari and ;P.S. Varadan, Advs.
Cases ReferredSingaravelu v. Pattammal
Excerpt:
.....sections 488 and 490 of criminal procedure code, 1898 - decree of maintenance passed in favour of wife - wife later on cohabited with husband - one child also born to them in result of cohabitation - subsequent cohabitation renders decree passed earlier as null and void. - - in appeal the learned district judge took a different view and held that mere resumption of cohabitation with the husband would be sufficient to render the decree ineffective and that was the effect of the decisions relied upon and it was not necessary further to show that the causes which rendered it necessary for a separate maintainance should be shown to have been removed, and that the effect of the resumption of cohabitation by the wife puts an end to the very basis of the de-cree and puts the parties back..........becomes wiped out by reason of the resumption of cohabitation.3. in air 1942 mad 1 (a), after the wife obtained a maintenance decree against her husband they decided to live together happily and the wife returned to the husband and they lived so for over five years. during this period the wife bore a son to her husband. five years thereafter she applied for execution of the decree which she had obtained originally and that execution application was opposed on the ground that there was cohabitation, that the husband and wife iived together ror five years and that the decree had become a nullity.the principle laid down by lord eldon inbateman v. countess of ross, (1813) 3 er 684 that a reconciliation after a separation entirelydid away with the effects of the separation andappeared in.....
Judgment:

Krishnaswami Nayudu, J.

1. The plaintiff appellant instituted a suit for maintenance O. S. No. 479 Of 1940 on the file of the District Munsif's Court of Aral, against her husband Bhashyam Aiyangar and obtained a decree on 21-3-1942. The grounds on which separate maintenance was granted, were cruelty, neglect and abandonment by the husband and that he was also keeping a concubine. On 27th July 1943 Bhashyam Aiyangar sold the suit property which was charged with the maintenance decree.

The sale was for the purposes of paying off the marriage expenses of Ehasham Aiyangar's daughter who instituted a suit O. S. No. 481 of 1949 and obtained a decree, Bhashyam Aiyangar, in executing the sale in favour of the first defendant, did not disclose that the property was charged with a decree for maintenance in favour of his wife and the sale was free from any encumbrance. But there can be no doubt that the property was charged with the maintenance under the decree in O. S. No. 479 of 1940 and the property purchased by the first defendant must therefore be subject to the charge in favour of the plaintiff.

The plaintiff executed her decree by filing E. P. No. 660 of 1948 for attachment and sale in enforcement of the charge decree and in execution the plaintiff herself purchased the suit property in court auction on 5th January 1949, and also purports to nave obtained delivery of possession.

2. The present suit out of which this appeal arises is instituted by the plaintiff for recovery of possession of the property on the ground of trespass by the first defendant. The action was resisted on the ground that the plaintiff resumed cohabitation with her husband prior to the execution petition E. P. No. 660 of 1948, that they were living as husband and wife for four or five years and that she even gave birth to a child on 16th December 1948 as established by Ex. B.2, an extract from the birth register.

The contention is that on resumption of cohabitation the maintenance decree became wined out and it does not therefore become executable and any sale to the plaintiff in pursuance of such a decree would not confer any rights on the plaintiff to the suit property. The decision in Venkayya v. Raghavamma, AIR 1942 Mad 1 (A), was relied on in support of the defence.

The trial court did not accept that mere resumption of cohabitation without the removal of the grounds for obtaining the separate maintenance, would be sufficient to make the decree ineffective and unenforceable and found that the husband visited the wife at her aunt's place twice or thrice occasionally in ten days or a fortnight in between during which period she had physical union with him, resulting in the birth of the child . and that it would not be sufficient resumption of cohabitation having the effect of nullifying the maintenance decree.

In appeal the learned District Judge took a different view and held that mere resumption of cohabitation with the husband would be sufficient to render the decree ineffective and that was the effect of the decisions relied upon and it was not necessary further to show that the causes which rendered it necessary for a separate maintainance should be shown to have been removed, and that the effect of the resumption of cohabitation by the wife puts an end to the very basis of the de-cree and puts the parties back precisely where they were before the decree was granted.

The learned Judge also cited in support of his conclusion the judgment of Basheer Ahmed Sayeed J. in Kallammal v. Nachammal. 1951 2 MLJ 4 . where the learned Judge held that the entire decree becomes wiped out by reason of the resumption of cohabitation.

3. In AIR 1942 Mad 1 (A), after the wife obtained a maintenance decree against her husband they decided to live together happily and the wife returned to the husband and they lived so for over five years. During this period the wife bore a son to her husband. Five years thereafter she applied for execution of the decree which she had obtained originally and that execution application was opposed on the ground that there was cohabitation, that the husband and wife Iived together ror five years and that the decree had become a nullity.

The principle laid down by Lord Eldon inBateman v. Countess of Ross, (1813) 3 ER 684 that a reconciliation after a separation entirelydid away with the effects of the separation andappeared in Haddon v. Haddon, 1887 18 QB 778& Williams v. Williams, (1904) 20 TLR 213 washeld to be applicable to a case of resumption ofcohabitation alter a maintenance decree was passed as in the present case.

In 1887 18 QBD 778 , after an order for payment of a weekly sum for the wife's maintenance was passed under Section 4 of the Matrimonial Causes' Act of 1873, the wife resumed cohabitation with the husband but they did not continue to live permanently. The Question arose as to whether she was entitled to enforce the order for weekly maintenance which was obtained before the resumption of cohabitation.

It was held that the order for payment of maintenance was annulled by reason of the subsequent resumption of cohabitation and therefore had become unenforceable and that her only remedy was to apply for a new order and not rely on the earlier order. The contention was that the English decisions had no application because the provisions of the Indian Divorce Act cannot be applied to them and a Hindu wife was not then entitled to sue for judicial separation and the learned Judges observed 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 held that the decree which she had obtained prior to the resumption of cohabitation must be regarded in the circumstances as having been ineffective.

An argument which was also advanced in the present case that the decree continued to remain in force under the Civil Procedure Code unless it has been satisfied or adjusted and satisfaction or adjustment has been recorded and a sale in pursuance of that action cannot therefore be considered to be set aside unless set aside by an order of court under the Civil Procedure Code, was advanced. '

Leach C. J. observed, 'The question is whether the court is to disregard a sound principle of law and enforce a decree the basis of which has by the action of the parties themselves been demolished.' The result of the resumption of cohabitation is that there is a reconciliation and the basis on which the decree was passed being demolished, the decree becomes ineffective.

4. This decision is distinguished in Singaravelu v. Pattammal, ILR 1949 Mad 613: AIR 1949 Mad 429 where the execution of a decree for maintenance passed in favour of a Hindu wife was sought to be resisted on the ground that she had become unchaste subsequent to the passing of the decree and it was held that where the decree for maintenance passed in favour of a Hindu wife is unqualified and does not contain any condition that the decreeholder would lose her right to exe-cute the decree if she became unchaste subsequent thereto, it is not open to the judgment debtor to plead in execution that the decreeholder was leading an unchaste life after the passing of the decree and that the decree was therefore unenforceable. With reference to the decision in AIR 1942 Mad 1 Rajamannar C.J. observed:

'It is not difficult to sustain the decision in this case On a principle analogous to the satisfaction of a decree. The husband who was bound to maintain the wife was directed by the decree to pay her a certain sum of money towards her maintenance. If subsequently she herself came and lived with him & he maintained her there would be pro tanto a satisfaction of the decree.'

Relying on this observation, it is urged that the decree could be said to have been satisfied only for the period during which the husband and wife lived together and if they separate again it would be open to the wife to execute the decree and claim maintenance for the period from which they again separate.

I do not think that the observation of the learned Chief Justice could be understood as expressing an opinion contrary to the principle laid down in AIR 1942 Mad 1 where the decree was held to be ineffective not on the basis that it has been satisfied but on the ground that the very basis or the foundation of the decree has become demolished in the sense that the causes that rendered the separation necessary must be deemed to have ceased to exist after reconciliation, the reconciliation being evidenced by the resumption of cohabitation.

It is not on the principle of the satisfaction of the decree that the decree could be held to be ineffective but on the ground that by resumption of cohabitation the parties must be deemed to have reconciled themselves and any differences which they had and which were the basis for the maintenance decree must be considered to have ceased to exist and the basis or the foundation of the decree must be considered to have become nonexistent.

All the authorities on the subject have been referred to and discussed by Basheer Ahmed Sayeed J. in 1951 2 Mad LJ 4 . In that case also there was resumption of cohabitation and a child was born as a result of such cohabitation. The learned Judge took the view that the fact that there was reunion and resumption must be held to have had the effect of wiping out the decree which was obtained prior thereto.

5. With reference to the argument that mere resumption of cohabitation without proof that the husband has ceased to be cruel or ceased to abandon her or has ceased to neglect her, would not be sufficient to deprive the plaintiff of executing her decree, it must be stated that resumption of cohabitation between a husband and wife necessarily implies that there has been reconciliation.

The resumption of cohabitation which has resulted in the birth of the child should not be viewed as merely fulfiling a biological purpose or satisfying the carnal craving of the husband or the wife. In the case of resumption of cohabitation between a husband and wife, after ill-feelings and separation rendering separate living necessary, as in the present case, it may be presumed that such cohabitation must be the result of reconciliation and not for any satisfaction of carnal craving.

It is more so in the case of a husband and wife in Hindu society. The application of the English doctrine that resumption of cohabitation would render a previous order for alimony ineffective must be considered to be based on principles of equity and justice equally appielable to eases of separate maintenance awarded to a wife against her husband.

The marital relationship between the husband and wife being considered to be among the Hindus not merely a matter of contract but a sacrament, and after the husband and wife quarrelled, if it is shown that they resumed cohabitation and a child was born, there can be no difficulty in holding that the previous conduct of the husband and the differences between them must be held to have been wiped out and therefore any decree based on a cause of action which must be deemed to have ceased to exist and the decree based being for future payment depending upon the continuance of the cause of action could not be a decree which should be permitted to be enforced by courts of law.

Following the decision in AIR 1942 Mad 1 and agreeing with Basheer Ahmed Sayeed J. in 1951 2 M LJ S.N. 4 , I am satisfied that the view taken by the learned District Judge on this question of law on the application of the English doctrine is correct.

6. The result is this second appeal fails andis dismissed with costs. No leave.


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