Kuppuswami Padayachi v. Jagadambal

This is an application to revise an order made by the Sub Divisional Magistrate of Ariyalur dismissing an application under Section 489 of the Code of Criminal Procedure filed by the petitioner for cancellation of an order of maintenance that had been passed in M.C 40 of 1944. In M.C 40 of 1944 the petitioner was directed to pay maintenance to his wife, who was the petitioner in that petition and who is the respondent here. A revision application was filed against that order and when that application came up for hearing in this Court on 5th February 1945, it was represented by the petitioner that the case had been compromised. The respondent's advocate then mentioned to the Court that he had not heard about it and he took time to verify the information. On 7th February 1945 it was reported by both parties that the husband and wife had resumed cohabitation and on that ground the petition was not pressed and was eventually dismissed. No specific orders were however then passed regarding the order of maintenance which had been passed in M.C No. 40 of 1944. It would appear that as reported then to this Court the respondent rejoined the petitioner and lived together, according to the petitioner, for six months. Subsequently, however, on account of differences that arose again, the respondent left the petitioner's house and claimed the maintenance awarded in M.C No. 40 of 1944 to be continued. That occasioned the filing of the application under Section 489 of the Code of Criminal Procedure by the petitioner, for the cancellation of the maintenance order. The learned Magistrate dismissed that petition on grounds which appear to me to be wholly untenable.

It is unnecessary to canvass those grounds as the matter is covered by direct authority. It was held by the learned Chief Justice and Mockett J. in Venkayya v. Raghavamma [1941] M.W.N 978; I.L.R 1942 Mad. 24 that a decree obtained by a Hindu wife against her husband for maintenance becomes annulled by reason of subsequent resumption of cohabitation and is not merely suspended during such period of resumption. The learned Chief Justice in his judgment reviewed the Indian as well as the English precedents on the question of alimony and held that by returning to her husband the wife became disentitled to claim maintenance against him and the decree which she had obtained must be regarded in the circumstances as having become ineffective. It was observed that by going back to her husband the wife restored the position to what it was when they were married. In dealing with the repercussion of this principle on the provisions of the Indian Code of Criminal Procedure the learned Chief Justice stated that he could see no difference in principle between an order passed under section 488 of that Code and an order under the Matrimonial Causes Act, 1878, or the English Summary Jurisdiction (Married Women) Act, 1895. He pointed out that if the principle stated by Lord Elden in Bateman v. Ross 3 E.R 684, was to be applied, there can be no question of the suspension of the order; the order goes entirely. Mockett J. in concurring with this view pointed out that the view taken by Curgenven J. in Kanagammal v. Pandara Nadar [1927] M.W.N 111;50 Mad. 663, was not in conformity with the well settled principles. The learned Chief Justice also referred to this decision of Curgenven J. and said that the decision ran directly counter to the principle embodied in the judgment in Haddon v. Haddon [1887] 18 Q.B.D 778. The position thus is that when once after the passing of an order of maintenance under Section 488 the husband and wife have resumed cohabitation, the order becomes automatically ineffective and unenforceable. No formal cancellation of that order appears to be necessary. If therefore there was neglect or refusal on the part of the husband subsequently, that would furnish a ground for the wife to make a fresh application, but she would not be entitled to claim the payment of maintenance on the strength of the order passed before the resumption of cohabitation. This principle was followed in and applied to a criminal case under Section 488 by Kuppuswami Aiyar J. in Munuswami Pillai v. Doraikannu Ammal [1945] M.W.N 691; Cr. 127. There the learned Judge emphasised that the joint living should have been resumed as husband and wife. The facts of that case were peculiar. The husband in that case brought the wife by a ruse into his house only to get over the order of maintenance that had been passed against him and never lived with her thereafter, but lived in a separate house with his concubine. The wife was attended to, if at all, by the husband's mother and she was made to do some menial work in the house. In those circumstances the learned Judge was of the opinion that such conduct did not amount to resumption of joint living and cohabitation. The facts of the present case are entirely different and there is evidence that for a period of six months the petitioner and the respondent lived as husband and wife after the order of dismissal was passed by this court in Criminal Revision case No. 874 of 1944. Following the Bench decision I must hold that the maintenance order passed in M.C No. 40 of 1944 ceased to be effective automatically on the resumption of cohabitation between the petitioner and the respondent and that the learned Magistrate ought in those circumstances to have cancelled the order when an application was made under Section 489 seeing that an attempt was being made by the respondent to enforce the order.

In the result the petition is allowed and the application made by the petitioner under Section 489 is granted and the order of maintenance passed in M.C No. 40 of 1944 against him in favour of the respondent is cancelled.

N.T.RPetition dismissed