(1) This is a revision petition filed by the husband against the order of the Additional First Class Magistrate, Trivellore, who refused to set aside the order of maintenance passed in favour of the respondent and against the petitioner herein. In M. C. No. 38 of 1957 the respondent got an order of maintenance against the petitioner herein. As per that order she is getting maintenance at the rate of Rs. 80 per month. It is alleged by the petitioner that subsequently the respondent came and lived with him and then again separated.
(2) After the separation, a further attempt was made to reconcile them. In this further attempt a sale deed was also executed for the arrears of maintenance and before the Panchayatdars an agreement Ex. P-2 was signed by both the husband and the wife stating that they will live together. The evidence of P.W. 2 who was a Panchayatdar, shows that at the Panchayat they suggested that a house must be fixed at Ayanavaram for the parties to live together.
(3) Exhibit D-1 is the letter written by D.W. 2 to the father of the respondent. That shows that a house had been fixed up, and advance rent paid and the father was asked to come with his daughter the very next day after the receipt of the letter. Ex. D-2 is the reply of the father of the girl to his letter. In this he refers to the receipt of the letter written by D.W. 2 and points out that personally he has no objection to sending his daughter but his relations were giving him trouble, the reason being that on several previous occasions she had undergone several troubles and mediation was effected and on that account whatever might have happened be pacified them and sent her but did not get a good name and everybody was angry with him. He writes 'What if the decree is not cancelled. What harm will be caused to him. It appears if such conduct happens, no good will result in their lives'.
(4) It is obvious that subsequent to the letter they never joined. The husband then filed a petition to cancel the order of maintenance passed against him on the ground that his wife has been living with him for some time and the resumption of co-habitation put an end to the order of maintenance. Evidence was led in on both sides. On the question whether she was living with him or not the oral evidence in this case was conflicting. The husband and his witnesses maintained that she was living with him for some time. The wife and her witnesses maintained that she never went and lived with him. But Ex. D-2 gives the clue to what happened.
(5) Reading the original of Ex. D-2 in Tamil it is quite clear that the father of the girl was complaining that he had a very bad name for having sent her (the daughter) on the prior occasions and that he had to pacify his relations who came and quarrelled with him for having sent his daughter and he says 'What does it matter if the decree was not cancelled'; apparently referring to the talk that the decree was to be cancelled. It is clear from this document that some time before the compromise, that is, before the Panchayatdars, on 18-4-1959 the wife had come and lived with him and separated. Now the question is that if the wife had come and lived with the husband even for some days whether the wife could be allowed to rely on the original order of maintenance in M. P. No. 38 of 1957 and execute the order against the petitioner.
(6) The question is covered by the decision of Yahya Ali, J., in Kuppusami Padayachi v. Jagadambal, 1947 Mad WN Cri 26 : AIR 1947 Mad 423. The learned Judge refers to the decision of a Bench of this Court consisting of the Hon'ble Chief Justice and Mockett J., in Venkayya v. Raghavamma, ILR 1942 Mad 24 : AIR 1942 Mad 1, where my Lord the Chief Justice held following the English decisions starting with Bateman v. Ross (Countess), (1813) 3 ER 684, that a reconciliation after separation entirely did away with the effects of the separation. At p. 27 (of ILR Mad): (at p. 2 of AIR), the Hon'ble the Chief Justice says referring to another case Williams v. Williams, 1904 P. 145.
'In that case the Court had no hesitation in holding that the resumption of co-habitation put an end to the cause of complaint and therefore the power of the Justices to make an order passed away altogether.'
(7) The Hon'ble the Chief Justice has also referred to another decision of a Bench of this Court in Syed Saib v. Meeran Bee, 20 Mad LJ 12, where it was held that a Magistrate was bound to refuse to enforce an order under S. 488 Cr.P.C., on the ground that the relationship of husband and wife had ceased to exist since the date of the order. Mockett J., while concurring with the learned Chief Justice said at p. 31:
'..... the decree in a case such as this, in the words of A. L. Smith J., comes to an end from the resumption of co-habitation. I have asked the learned counsel for the respondents whether it is possible for him to distinguish a decree passed in a suit for maintenance from a decree passed under the Indian Divorce Act, or an order passed under S. 488 Cr.P.C. He has said that it is impossible to do so, so far as the basis is concerned. That must be so because the basis of all these orders is that if the husband neglects to maintain his wife she by reason of his unlawful neglect is entitled to maintenance. That is important in this case for this reason. The parties, as my Lord has indicated, went before the Court and admitted that, shortly after the consent decree, they had lived together as husband and wife, there being a difference as to whether the period was five or seven years.'
(8) The decision in ILR 1942 Mad 24 : AIR 1942 Mad 1, in a decision of a Bench of this Court and it is binding on me. It has been followed by Yahya Ali J. in 1947 Mad WN Cri. 26 : AIR 1947 Mad 423 and I entirely agree with Yahya Ali J. On the authority of the above decisions I must hold in this case that there was a reunion for some time and that put an end to the order under S. 488 Cr.P.C. If the wife separated again from the husband, then she must file another petition, a fresh cause of action, and obtain an order if she satisfied the Court that there is sufficient reason to leave her husband and that he neglected to maintain her.
(9) This petition is allowed and the order of the lower Court is set aside.