1. The respondent obtained a decree for maintenance against her husband, the appellant, and during the appeal the parties entered into a compromise, the material part of which is set out hereunder:
(1) The plaintiff shall be held entitled to recover Rs. 480 for arrears of maintenance up to date from the defendant of which Rs. 300 is payable by the defendant to the plaintiff within one month from this date. The balance of Rs. 180 must be deposited in Court within a month thereafter.
(2) That a sum of Rs. 96 be fixed per year as the maintenance to be paid by the defendant to plaintiff in a lump sum payable on 25th of August of eyery year beginning from 25th of August, 1938. The maintenance that has accrued due to the plaintiff from 25th August, 1938, is. subject to the proviso mentioned hereunder, in clause 3.
(3) That the defendant do take the plaintiff into his house and live as husband and wife for a period of one year, during which time the maintenance decree is not to be enforced by the plaintiff. The same may be executed at the end of one year from this day or at any time thereafter, if the defendant has refused to maintain her or otherwise treated her with neglect during the said period of one year or thereafter. That the plaintiff then be entitled to execute the decree for the arrears of past maintenance namely Rs. 180 decreed above and for future maintenance as from 25th August, 1933, with execution costs and for a proper provision for separate residence.
(4) That the plaintiff should have a charge for future maintenance on four acres 48 cents out of item 3 in the plaint A schedule bearing D. No. 62-4A.
(5) The plaintiff shall have no claim for the amount of maintenance as fixed above during the period of the parties living as husband and wife. Each party do bear his or her costs incurred so far.
In accordance with the terms of the compromise decree, the wife lived with her husband for a few months and then applied to execute the decree, as the good treatment which the appellant had promised had not been meted out to her. The question that arose in the Courts below and here is whether this compromise decree could be enforced. Both the lower Courts held that it could.
2. On two grounds it is contended that the decree is not executable; firstly, because the contract entered into by the parties which was embodied in the decree is contrary to public policy, and therefore unenforceable, and secondly, that as the parties had lived together for some months, the very basis of the decree had been taken away and that the decree was therefore no longer executable. Her remedy is by way of a fresh suit on a fresh cause of action.
3. The first point affords little difficulty. The general purport of the contract seems to be that the wife was expressing her willingness to suspend the operation of her decree for a period of one year in order to give her husband an opportunity of proving that he was willing to maintain her properly without cruelty or neglect. Had her right to enforce her decree not been emphasised I have no doubt that she would have been unwilling to have entered into any compromise at all. Therefore, far from being opposed to public policy, it seems to be in the interests of family life that the wife should be willing to forego her rights to maintenance for a while in order that the husband should have one more opportunity of showing that he was fit to live with. Two cases cited by Mr. Kotayya in which it was held that an agreement entered into between the husband and the wife were not binding on the husband, are Krishna Aiyar v. Balammal I.L.R.(1910) Mad. 398 and Tekait Mon Mohini Jemadai v. Basanta Kumar Singh I.L.R.(1901) Cal. 751. In the former case, the agreement, that was sought to be enforced by way of a separate suit was one under which the wife might leave her husband at any time uporn any cause, and if she did, she was entitled to be paid a sum of money by him. It is not surprising that such a contract was held to be contrary to public policy, in that it enabled a marriage to be broken up for no proper cause In Tekait Mon Mohini Jemadai v. Basanta Kumar Singh I.L.R.(1901) Cal. 751 the wife sought to enforce an antenuptial agreement as an answer to her husband's suit for destitution of conjugal rights. According to that agreement, the husband, who was then a minor, agreed that he would not leave the house of his wife's parents and that he would not ask her to do so. It was held that such an agreement was contrary to public policy; for it was the duty of the wife to live with her husband wherever he might go. These cases bear little resemblance to the contract under consideration here.
4. On the other question, the authority upon which most reliance has been placed is Venkayya v. Raghavamma : AIR1942Mad1 in which, after the wife had obtained a maintenance decree, she returned to her husband and lived with him as his wife for five years, during which time she bore him a child. It was held that the basis of the decree having gone, it was no longer executable. In the present case, however, the wife clearly had no intention of abandoning her rights under the decree by adopting a fresh relationship with her husband. She was merely prepared to suspend the operation of the decree for a while and if she found that her husband had mended his ways, she was prepared to relinquish her rights under the decree. The cases referred to and followed by the learned Judges in the above case cannot readily be applied to the present case. In Bateman v. Countess of Ross (1813) 1 Dow. 235 : 3 E.R. 684 Mr. Justice Hawkins, says:
It is impossible to suppose that the Legislature... intended to confer upon them (Magistrates) jurisdiction to make an order which should give a wife liberty to live apart from, and resume cohabitation with, her husband when and as often as she should think fit, and compel her husband to maintain her at all times when it pleased her to separate from him, even though her safety no longer required a separation.
5. In Elian Ma Moo v. William Po Thit I.L.R.(1924) Rang. 163 the husband and wife lived together for fourteen years before the wife sought to execute her decree. Clearly, these cases afford no guidance in the present case, wherein, by the very contract embodied in the decree, she retained her right to execute the decree unless her husband mended his ways. The appeal fails and is dismissed with costs.