Resumption of cohabitation does not put an end to the order under Section 488.

1. This is a reference made to this Court by the learned Second Additional Sessions Judge, Poona, and it arises from an application made by the husband. It appears that the petitioners wife sued him for maintenance, and the Magistrate made an order allowing the wife maintenance, at the rate of Rs. 20 per month and each child at Rs. 15 per month. The wife then made an application for arrears of past maintenance, when there was a compromise between the parties, because the parties agreed that they would resume cohabita-tion. and that application for arrears was disposed of. Subsequently it appears that the wife and husband cohabited for some time, but then they again separated, and the wife made an application again for arrears of past maintenance from the date of the original application, namely, the 14th of April 1953. The husband then raised a contention that he and the wife had resumed cohabitation, and consequently the order had come to an end. The order which the Magistrate passed upon this was that in that case the husbands remedy was to make an application under Section 489. Then the Magistrate went on to say that the husband had agreed to pay the wife maintenance at Rs. 20 per month and each child Rs. 10 per month, and that showed that he did not wish to get-the old order cancelled. The Magistrate then gave the wife arrears for seven months at the rate which the husband said he would pay. namely, Rs. 40 per month. This was on the 16th of August 1955.

2. The husband then made the application from which the present reference arises say-ing that the order upon the application of the 14th of April 1953 had come to an end. because he and the wife had lived together. The wife raised a contention that the application which the husband had made was not a bona fide one; the husband did not as a matter of fact wish to reside with the wife, and he had resided with her only for a short time. The learned Magistrate to whom the application was made dismissed this application saying that it had already been decided in the previous application that the order passed on the wifes first application under Section 468 has not been cancelled.

3. The learned Sessions Judge has made this reference to this Court for setting aside this order. The learned Magistrate does not seem to be correct when he observed that it was decided in the other case that the order had not been cancelled. What appears to have happened was that the learned Magistrate to whom the application for arrears of maintenance was made expressed the view that if the husband wanted to contend that the old order had come to an end, his proper remedy was to make an application under Section 489. Upon that view being expressed, the husband seems to have-thought fit not to press further his contention that the order on the wifes maintenance petition had come to an end, and then he said that he would agree apparently in respect of the period for which the wife was demanding arrears of maintenance to the wife at Rs. 20 and each child Rs. 10 per month. The Magistrate thereupon made an order for payment of Rs. 280. There is nothing in that order from which one can come to the conclusion that the Magistrate decided that the order upon the maintenance petition of the wife had not come to an end owing to the subsequent co-habitation between the husband and the wife,

4. it seems to me, however, that even, though the learned trial Magistrate was in error in not deciding the contention for himself, there are no reasons for saying that the order on the wifes petition had come to an end. The authority in support of this contention is the English case of Haddon v. Haddon, (1887) 18 QBD 778 (A). Now it has got to be remembered that in that case Section 4 of the Matrimonial Causes Act, 1878, provided:

"If a husband shall be convicted summarily or otherwise of an aggravated assault within the meaning of the statute 24 and 25, Vict. c. 100, Section 43, upon his wife, the Court of Magistrate bef