A decree for maintenance passed by a Civil Court cannot be resisted in execution on the ground that the parties have resumed cohabitation after the passing of the decree.

Headnote:
MAINTENANCE DECREE - EXECUTION - RESUMPTION OF COHABITATION - EFFECT ON DECREE - HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 - SECTIONS 18, 25 - CODE OF CRIMINAL PROCEDURE, 1973 - SECTIONS 125, 127 - A decree for maintenance passed by a Civil Court cannot be resisted in execution on the ground that the parties have resumed cohabitation after the passing of the decree. Such a resumption of cohabitation does not make the decree ineffective or unenforceable.
Fact of the Case:

In two separate cases, a husband sought to resist the execution of a maintenance decree passed against him on the ground that he and his wife had resumed cohabitation after the passing of the decree. The executing Court rejected this contention, and the husband filed revisions and an appeal.
Finding of the Court:

The Court held that a decree for maintenance passed by a Civil Court cannot be resisted in execution on the ground that the parties have resumed cohabitation after the passing of the decree. Such a resumption of cohabitation does not make the decree ineffective or unenforceable.
Issues: Whether a husband can resist the execution of a maintenance decree on the ground that he and his wife have resumed cohabitation after the passing of the decree.
Ratio Decidendi: The Court relied on the Supreme Court decision in Bhupinder Singh v. Daljit Kaur, which held that an order for maintenance under section 125 of the Code of Criminal Procedure will operate until vacated or altered in terms of the provisions of the Code itself. The Court also noted that sections 18 and 25 of the Hindu Adoptions and Maintenance Act provide for the alteration or quashing of a maintenance order, but that these provisions are similar to those in sections 125 and 127 of the Code of Criminal Procedure. Therefore, the Court held that there is no difference between an order by a Criminal Court under section 125 and a decree by a Civil Court, and that both are enforceable until they are vacated or altered in accordance with the relevant provisions of the law.
Final Decision: The Court discharged the rule in the revision application and dismissed the appeal.

JUDGMENT - B.C. GADGIL, J.:---These two matters, though unconnected with each other, can be conveniently decided by a common judgment, as a similar controversy arises in both of them.

2. Before considering the dispute between the parties. I would like to state briefly the relevant facts in both the litigations. Civil Revision Application No. 744 of 1982 arises from an order passed in Special Darkhast No. 121 of 1979 that the amount of maintenance claimed in that darkhast should be recovered from the judgment-debtor. This darkhast was filed by the decree-holder-wife on the basis of a decree dated 31-7-1967 passed in Special Suit No. 44 of 1966. Maintenance of Rs. 100/- per month has been granted to the wife. In Darkhast No. 121 of 1979 the husband resisted the execution on the ground that after the passing of the decree the husband and wife (viz. the judgment-debtor hand the decree holder) had resumed cohabitation and that on this count the decree for maintenance had become unenforceable. This contention was rejected by the executing Court and hence the husband judgment debtor filed a revision.

3. Second Appeal No. 56 of 1983 is filed by the husband against an order for recovery of maintenance amount in pursuance of a decree for maintenance that was passed against him in Suit No. 243 of 1974. It was a compromise decree under which the husband agreed to pay Rs. 300/- per month if he would provide a separate residence and otherwise Rs. 400/- per month. The wife filed Regular Darkhast No. 88 of 1977 for executing the decree. The darkhast was opposed by the husband on the ground that the parties had resumed cohabitation after the passing of the decree and that, therefore, the decree had become inexecutable. The said objection was overruled. The judgment debtor husband filed Appeal No. 322 of 1980 in the District Court, Sangli. That appeal was dismissed and hence he has filed the second appeal.

4. Thus, the main controversy in both the matters is as to whether the judgment-debtor-husband can resist the execution of a maintenance decree on the ground that after the passing of the decree the parties have resumed cohabitation and whether by such cohabitation the decree becomes inexecutable. Shri Hombalkar who appears for the revision petitioner and Shri Rane who argued for the appellant in the second appeal contended that the husband can, in an execution petition, allege that the decree has become inexecutable on account of resumption of cohabitation. As against this, Shri Shah and Shri Naik argued that such a plea is not permissible. The learned Advocate on behalf of both the sides relied upon a number of decisions of the various High Courts and it would be necessary to consider them.

5. The Madras High Court has taken the view that such a resumption of cohabitation would make the decree ineffective. For example, the headnote in the case of (Venkavya v. Raghavamma)1, A.I.R. 1942 Madras 1, reads as follows :---

"A decree obtained by a Hindu wife against her husband for maintenance differs in no important respect from an order for permanent alimony embodied in a decree for judicial separation, and therefore when the wife subsequent to the decree resumes co-habitation with her husband, the English principle can be applied viz., that the decree becomes ineffective and cannot be enforced. If she is compelled to leave him after resuming, co-habitation she should apply for a fresh decree."

This was a case about the execution of maintenance decree. The same High Court had an occasion to consider the execution of an order passed under section 488 of the Code of the Criminal Procedure. In the case of (Kuppuswami Padayachi v. Jagadambal)2, (1947)48 Criminal Law Journal 302, the Madras High Court held as follows :---

"When once after the passing of an order of maintenance under section 488 the husband and wife have resumed co-habitation, the order becomes automatically ineffective and unenforceable. No formal cancellation of that order is necessary. If

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