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Criminal Revision No. 328 of 1962, decided on 26th November 1962.
S. 488-Wife obtaining order of maintenance - Re-union and resumption of cohabitation between husband and wife-Order not rendered ineffective on wife separating again from husband-English case-law not applicable Matrimonial Causes Act, 1878 [English], S. 4.
S. Natesa Pillai v. Jayammal A 1 R 1960 Mad. 515 and Venkayya v. Ragharamma A I R 1942 Mad. 1 not foll.
Kanagammal v. Pandra Nadar A I R 1927 Mad. 376 ; Munuswami Pillai v. Doraikannu Ammal A I R 1946 Mad. 222 ; Kuppuswami Padayachi v. Jagadambal A I R 1947 Mad. 423 ; Ellen Ma Noo v. William Po Thit A I R 1924 Rang. 314 ; U Po Shein v. Ma Sein Mya A I R 1931 Rang. 89 ; Sultan Khan v. Mst. Khanam Jan A I R 1937 Pesh. 45 ; Laxman Gajju v. Sitabai Laxman A I R 1958 Bom. 14 ; Parul Bala Debi v. Satis Chandra Bhattacharjee A I R 1923 Cal. 456 ; Pearey Lai v. Mst. Naraini A I R 1935 All. 977 ; John P. E. Coelho v. Messrs Blanche Coelho A I R 1936 Nag. 228 ; Kasinath Panda v. Padambati Debi A I R 1956 Orissa 199 ; Mukand Singh v. Mst. Kartar Kaur A I R 1958 Pb. 422 and Mst. Zauhra Bi v. Muhammad Yusuf A I R 1930 Lah. 1043 ref.
Faizanul Haq for Applicant.
Hafiz Abdul Baqi for Respondents.
Imam Bux Sheikh for the State.
Dates of hearing : 15th, 19th and 29th November 1962.
This is a criminal revision application and it arises in this way .
2. The applicant Muhammad Hussain married the opponent Mst. Shakira Begum in 1955 and there were two children from this marriage. The marriage turned out to be unhappy and on 27-3-1961 the opponent Mst. Shakira Begum filed an application under section 488, Cr. P. C. in the Court of Mrs. Suraiya Ahmad Pai, A. C. M., Karachi for maintenance against her husband for herself and for her two small children. On 21-8-1961 the lady Magistrate awarded maintenance to Mst. Shakira Begum of Rs. 40 per month and to each of her children in the sum of Rs. 25 per month thus making a total of Rs. 90 per month. In the following month the husband Muhammad Hussain filed a revision application being Revision Application No. 161/61 in the Sessions Court, Karachi, against this order of maintenance but a compromise was arrived at between the husband and wife on the strength of which the said revision application was dismissed on 6-12-1961. Apparently, thereafter, the parties came together and lived and cohabited together for a whole month till 7-1-1962 when they again separated and the wife Mst. Shakira Begum went to live with her mother along with her two children. On 16-1-1962 Mst. Shakira Begum applied to the lady Magistrate for recovery of her arrears of maintenance as from 7-1-1962 and obtained an order from her in these words
"Writ of attachment of the opponent's salary to issue.
(Sd.) S. A. Pai dated 16-1-1962."
The husband also filed an application under section 489, Cr. P. C. on which the lady Magistrate passed an order on 26-2-1962 in these words
"The opponent agreed to pay Rs. 90 per month before the Revisional Court. He can therefore not dispute the applicant's right to claim the amount. Execution to proceed."
Against this order a second revision application being Criminal Revision Application No. 81/1962 was filed by the husband in the Sessions Court, Karachi on 14-3-1962 which was dismissed by the Additional Sessions Judge Mr. Mehdi Ali Siddiqui on 18-5-1962. It is as against this order of the Additional Sessions Judge, Karachi, that the present revision application has been filed on behalf of the husband in this High Court.
3. The sole point of substance urged by Mr. Faizanul Haq, the learned Advocate appearing on behalf of the applicant in this revision application is that inasmuch as the parties namely the husband and wife had after the order of maintenance composed and compromised their differences and had lived and cohabited together in the same house, the original order of maintenance made against his client is abrogated and cancelled as a result of this compromise. This point is, I find, covered by mass of Case-Law and although it is a point of substance yet it was not taken in the Sessions Court and does not appear to have been noticed either by the Advocates appearing in that Court or by the Additional Sessions Judge. It is apparent that but for this point there is no force or substance in the present revision application. Hence it has become necessary to consider with some detail the Case-Law as it stands on this point.
4. Mr. Faizanul Haq the learned Advocate appearing on behalf of the applicant invited my attention, to the case o: S. Natesa Pillai v. Jayammal (A I R 1960 Mad. 515). It was held in this case by a Single Bench of the Madras High Court that where the wife comes and lives with the husband even for some days the wife cannot be allowed to rely on the original order of main tenance and to execute that order against her husband. Under section 488, Cr. P. C. living together puts an end to the order of maintenance. If the wife separates again from her husband, then she must file another petition on a fresh cause of action and obtain an order if she satisfies the Court that there was sufficient reason to leave her husband and that he neglected .to maintain her. This Single Bench ruling is based on a Division Bench ruling of that same High Court in the case of Venkayya N . Raghavamma (A I R 1942 Mad. 1). It was held by the Division Bench in this case that a wife who has obtained a decree for maintenance against her husband renders that decree ineffective and unenforceable by subsequent cohabitation, with that husband. If she is compelled to leave him after resuming cohabitation she should apply for a fresh decree.
5. It is interesting to observe that even before this view was adopted by this Division Bench and thereafter taken by all the Judges of the Madras High Court to be the locus classicus on this point, a contrary view had been taken by Curgenven, J. of this same High Court. in the case of Kanagammal v. Pandra Nadar (A I R 1927 Mad. 376). The view that commended itself to this Judge sitting singly was that a maintenance order under section 488, Cr. P. C. in favour of a wife is not cancelled even if the wife returns to her husband for some time although it may remain suspended. An order under section 488, Cr. P. C., said this learned Judge, continues in force until either cancelled or modified on the grounds set out in subsection (5) of section 488, Cr. P. C. But, this view of Curgenven, J. did not commend itself to the Division Bench of A I R 1942 Mad. 1 consisting of Sir Leach C. J. and Mockett, J. Both these English Judges preferred the view prevailing in the Courts in England as propounded by Lord Eldon in a case in 1813 and by succeeding Judges. This view based upon a construction of section 4 of the Matrimonial Causes Act 1878 was that an order of maintenance comes to an end from the presumption of cohabitation. Mockett, J. in his judgment examined the question whether a decree passed in a suit for maintenance could be distinguished from a decree passed under the Divorce Act or an order passed under section 488, Cr. P. C. and came to the conclusion that the basis of these orders being the same there is no difference between them This view pro pounded by the Division Bench in A I R 1942 Mad. 1 has beer adopted by succeeding Judges of that High Court as appears from the case of Mzinuswami Pillai v. Doraikannu Ammal (A I R 1946 Mad. 222) decided by Kuppuswami Ayyar, J. in Kuppuswami Padayachi . v. Jagadambal (A I R 1947 Mad. 423) decided by Mr. Yahya Ali, J. and in S. Natesa Pillai v. Jayamal decided by Mr. Somasundaram, J: in A I R 1960 Mad. 515.
6. The only other High Court that appears to have taken this same view as Madras High Court is the High Court of Rangoon as is apparent from the judgment of Beasely, J. in the case of Ellen Ma Noo v. William Po Thit (A I R 1924 Rang. 314) and again in the judgment of Doyle, J. in the case of U Po Shein v. Ma Sein Mya (A I R 1931 Rang. 89). The view expressed by these two English Judges was that the re-union of the husband and wife vacates an order of maintenance under section 488, Cr. P. C. In A I R 1937 Pesh. 45 a judgment is reported of Middleton, J. C. in the case of Sultan Khan v. Mst. Khanum Jan where his Lordship held that where there is a subsequent compromise between the husband and wife after a maintenance order has been made under section 488 (1), Cr: P. C. although the said order should remain in force yet, the existence of the compromise which could be proved at any time was sufficient ground for any Magistrate to refuse to enforce the order, if moved to do so under section 488 (3), Cr. P. C. or section 490, .Cr. P. C.
7. The above is all the Case-Law that appears to be in existence in support of the view urged by the learned Advocate appearing on behalf of the applicant. I have already indicated above how this view found favour with the English Judges administering justice in this vast subcontinent and how it is based upon the construction of an English statute. It is indeed of importance to note that the contrary view namely "re-union and cohabitation between parties does not put an end to an earlier maintenance order" has been adopted by all the other High Courts in India including Bombay, Calcutta, Allahabad, Nagpur, Orissa, East Punjab and Lahore.
8. The case of Laxman Gajiu v. Sitabai Laxman (AIR 1958 Bom. 14) although decided by a Single Judge Bavdekar, J. is of great interest because that learned Judge traces the origin of the view adopted by English Judges on this point in India and illustrates the distinction between section 4 of the Matrimonial Causes Act 1878 and section 488 of our Code of Criminal Procedure. He points out how the English authorities which proceeded upon the words of an English statute can have no application when interpreting the words of section 488, Cr. P. C. He refers to reported judgments of the Nagpur, Allahabad, Calcutta and Lahore High Courts supporting his view that "cohabitation does not put an end to the order under section 488, Cr. P. C".
9. In the case of Parul Bala Debi v. Satis Chandra Bhattacharjee (A I R 1923 Cal. 456) a Bench of that High Court presided over by the eminent Chief Justice Sir Sanderson, C. J. and Panton, J. held that-
"A mere temporary stay of the wife with the husband though it may have suspended the operation of the order, has not the effect of cancelling it in the way in which it could be cancelled under section 488 (5) of the Code."
In the case of Pearey Lal v. Mst. Naraini (A I R 1935 All. 199) it was held that-
"the mere fact that a woman goes to live with her husband for sometime, is not sufficient to make an order of main tenance obtained by her ineffectual though it may have the effect of suspending the order for the period the women lives with her husband."
In the case of John P. E. Coelho v. Mrs. Blanche Coelho (A I R 1956 Orissa 199) it was pointed out that-
"Reunion does not automatically vacate a previous order of maintenance."
10. In the case of Casinath Panda v. Padambati Debi (A I R 1936 Nag. 228) it was held by a Division Bench that an order for maintenance under section 488 (1), Cr. P. C. will not cease to be operative merely because there was subsequent resumption of cohabitation between husband and wife though it will remain under suspension during that period. It would revive when the wife again lives separately from her husband unless and until it is cancelled by the competent authority in a proper proceeding under sub section (5) of section 488, Cr. P. C. The same view was taken in a more recent case of Mukand Singh v. Mst. Kartar Kaur (A I R 1958 Pb. 422). It was explained in that case that-
"Section 488 provides a special remedy for a neglected wife, and the chapter in which that section appears is self-contained so for as the procedure to be adopted in such cases is concerned. Subsection (5) appears to contemplate the eventuality of there having been a reconciliation between the husband and wife after an order for maintenance has been made in favour of the wife and the wife subsequently refusing without sufficient reason to live with her husband. It follows that an order once passed under section 488 remains in force till it is cancelled on the grounds set out in section 488 (5) though on temporary re-union the operation of the order would remain suspended."
11. Finally in A I R 1930 Lah. 1043 it was held by Jai Lal, J. in the case of Mst. Zauhra Bi v. Muhammad Yusuf that-
"Where an order is made granting maintenance allowance to a Muhammadan son aged 3 on the application of the mother who was living separately from her husband, the mere fact that the mother, since the date of the order, has taken the boy to live with his father and has again taken him away from his father, cannot lead to an automatic cancellation of the order but it must be taken to subsist."
12. The above being the present position of the Case-La on this important question so far as all the High Courts in the former sub-continent of India are concerned with the exception of the Madras High Court and this also being the view of single Madras Judge Curgenven, J. in A I R 1927 Mad. 376, I am constrained to adopt this view and to hold that on the facts of this particular case although the applicant and the opponent came together and lived together for a whole month after the original order of maintenance yet, this order subsists and the fact that they have again separated entitles the opponent Mst. Shakira Begum to receive the amount of maintenance originally awarded to her by the lady Magistrate.
13. This revision application must, therefore, be dismissed.
K. B. A.
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