Guha Ray, J.
1. This is a reference under Section 438, Criminal P. C. by the Additional Sessions Judge of Midnapore recommending that an order of a Magistrate directing the petitioner to pay the arrears of maintenance of Rs. 400/- by a certain date and further directing issue of a distress warrant in default of payment of the arrears by that date be set aside, and the learned Magistrate be directed to hold an inquiry into the question whether the opposite party, who is the wife of the petitioner, was living a life of adultery and whether the order allowing maintenance at the rate of Rs. 25/- per month to the wife and the child should be cancelled on that ground.
2. Kalyani Debi is admittedly the wife of Nirmal Kumar Panda. She claimed maintenance from her husband on 6-2-1951.The learned Magistrate allowed her maintenance at the rate of Rs. 25/- per month from the date of her application i.e. from 6-2-1954. He also allowed maintenance to the only child of the marriage at the rate of Rs. 10/- per month from the date of the wife's application.
The order of the Magistrate was passed on 13-12-1954. This Court by an order dated 10-5-1955 modified the order of maintenance to this extent that Rs. 25/- was payable to the wife and the child together per month from the date of the wife's application to the Magistrate. On 22-6-1955 the wife filed an application before the Magistrate claiming arrears of maintenance to the extent of Rs. 400/-. To this the husband objected saying that the wife was living a life of adultery in her father's house, and as such she was not entitled to recover any maintenance. The learned Magistrate did not go into the question at all on the ground that that question had been already gone into in connection with the wife's application for maintenance and it could not be reagitated. The learned Judge thinks that the husband was entitled under the provisions of Section 488(3), Criminal P. C. to raise the objection that the wife was living a life of adultery when the wife claimed to recover the arrears of maintenance, for this would amount to sufficient cause within the meaning of the phrase 'without sufficient cause' in Sub-section (3) of Section 488, Criminal P. C. The learned Judge accordingly thinks that the Magistrate should go into this question and decide the question whether the wife was entitled to recover the arrears of maintenance on the basis of the decision of the question whether the wife was living a life of adultery. The husband also applied for cancellation of the order of maintenance on the ground that the wife was living a life of adultery, and that also should be inquired into, according to the learned judge.
3. On behalf of the husband it is argued before me that it is open to the husband to raise in a proceeding for recovery of arrears of maintenance the question whether the wife was living in adultery even before the order of the Magistrate was made although that question was once decided by the Magistrate; whereas on the side of the wife it is argued that it is no longer open to the husband to reagitate the question that the wife was living a life of adultery prior to the date of the order of the Magistrate, because that question has once been decided and cannot be reagitated on the principle of res Judicata. In support of the contention on behalf of the husband reliance is placed on the case of Sangavva Gulappa v. Gulappa Kariyeppa, AIR 1942 Bom 258 (A). In that, case, of course, even in the proceeding under Section 488(1), i.e., proceeding started on the wife's application for maintenance, the husband's plea was that his wife was living in adultery but the evidence which he produced on the point was considered insufficient. The husband, however, did not pay the maintenance ordered and when the wife applied for recovery of arrears of maintenance the husband contended as before that his wife had been and was living in adultery, After hearing the evidence on the point the Magistrate cancelled the order for maintenance on 25-9-1941, and as a result of this the application of the wife for enforcement of the order was rejected. Both the trial Magistrate and the Sessions Judge, to whom an application was made in revision, accepted the evidence as to the wife's adultery, but the Sessions Judge took the view that the Magistrate ought to have made an order for payment to Sangawa of the arrears of maintenance up to the date of cancellation of the order. Their Lordships of the Bombay High Court, however, took the view that the effect of Clauses (3) and (4) together is that on proof that the wife is living in adultery the Magistrate would be justified in refusing and indeed bound to refuse to execute an order for maintenance, quite apart from the question whether the order had been cancelled or set aside, and that where therefore an order for maintenance was cancelled on the ground of adultery, the effect of the cancellation was that even the arrears of past maintenance would not be recovered. On behalf of the wife, however, reliance is placed on an earlier case of the Allahabad High Court -- Laraiti v. Ram Dial, ILR 5 All 224 (B). It was a decision of a single Judge under Section 536 of the old Code of 1872 and it was held that on the general principles of the rule of res Judicata the second Magistrate was wrong in law in re-opening matters already adjudicated upon, and his order directing the discontinuance of the allowance on the ground of facts antecedent to the former Magistrate's order must be held to be illegal aS Sub-section (3) stands, where the husband has failed to comply with the order without sufficient cause, any such Magistrate as is mentioned in Sub-section (1) may for every breach of the order issue a warrant for levying the amount due. Then Sub-section (5) further lays down that on proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order. Where, however, an order of maintenance is cancelled the position is bound to be as though the order of maintenance was never passed or, in other words, the order of cancellation is bound to have effect from the date when the order of maintenance itself was made. On general principles, therefore, where an order of maintenance is cancelled, it must mean as though the order of maintenance was never made, and where such is the position, there is no question of any order of maintenance being enforced, for, there is really nothing to enforce after the order has been cancelled, where, however, the order is not cancelled, the question is whether a Magistrate is entitled to go into the question if the wife was living in adultery even at a time prior to the order of maintenance although that had been already decided upon by the Magistrate in making an order of maintenance. It seems to me that on general principles this should not be allowed. And the question did not really arise in the Bombay case although there are observations to that effect. In the Bombay case, as I have already stated, the question was whether an order that had been cancelled on the ground of adultery could be enforced at all for any period. There the question did not arise whether in the absence of an order of cancellation it was open to the Magistrate to go over again into the question whether the wife was living in adultery even at a period prior to the order of maintenance being made. Whatever their Lordships, therefore, said in this case in this connection must be obiter. The Allahabad case takes a contrary view, and, if I may say so, with respect, rightly. Where it has been already decided upon that the wife was not living in adultery upto a particular date and when that decision has not been set aside by a superior Court, it is not open on general principles to another Magistrate or the same Magistrate to go into the same question over again.
4. The position in law, therefore, seems to me to be this that where an order of maintenance is cancelled, there is nothing to enforce and nothing can be enforced. There is thus no question of his enforcing the order and there is also no question of his executing the order for arrears of maintenance.
5. The result then is that the reference isaccepted and the learned Magistrate is directed totake evidence on the question whether the wifehas been living in adultery since the date of thelearned Magistrate's order of maintenance: viz.since 13-12-1954, the High Court's order which issubsequent to this being merely a modification ofthe learned Magistrate's order. If his finding isthat the wife has been living in adultery since,he will cancel the order and reject the wife's application for recovery of the arrears of maintenance. If, on the other hand, he finds that question in the negative, he will reject the husband'sapplication for cancellation of the order of maintenance and proceed under Sub-section (3) of Section 488of the Code of Criminal Procedure for recovery ofthe arrears of maintenance.