The operation of an order for maintenance passed under section 488 is suspended during the time that the two spouses are reunited and the wife actually lives with her husband.

JUDGMENT-This is an application filed by a husband against his wife to revise and set aside the order passed by the learned Presidency Magistrate 29th Court, Bombay, on April 14, 1972 directing the issue of a distress warrant 1.0 enforce a maintenance order under section 488 of the Criminal Procedure Code. The trial Magistrate had on August 21, 1970 passed an ex parte order under section 488, Criminal Procedure Code in favour of the respondent-wife ordering the petitioner to pay to the respondent maintenance at the rate of Rs. 25 per month from the date of the application, which was March 30, 1970, as well as the cost of that application. The petitioner applied on September 14, 1970 to set aside that ex parte order and that application is still pending. In the meantime, on October 23, 1970 a joint application was made by the respondent and the petitioner that they had got reconciled on certain terms and, pursuant to that reconciliation, on that very day the respondent-wife went to live with the petitioner in the matrimonial home. The two of them lived together as husband and wife till January 29, 1972 when the respondent left her husbands home in certain circumstances alleged by her to which it is unnecessary to refer. On January 14, 1970, which would be just about a fortnight before she left her husbands home, the respondent filed an application to enforce the maintenance order dated August 21, 1970 passed in her favour by the issue of a distress warrant, as contemplated by sub-section (3) of section 488 of the Criminal Procedure Code. By the said application, she claimed a sum of Rs. 350 as being the arrears of maintenance due to her for the period from March 30, 1970 to July 31, 1970, and a further sum of Rs. 900 by way of maintenance due to her for the period from January 1,1971 to December 31, 1971. It may be mentioned that the former period was one before the reconciliation of October 23, 1970, and the latter period was a period during the whole of which she was living with the present petitioner in the matrimonial home consequent on that reconciliation. Following the judgment of Bavdekar J. in the case of Laxman Gaju v. Sitabai Laxman1 in which it was held by that learned Judge that co-habitation as a result of a temporary reunion of the husband and wife did not put an end to an order made in favour of the wife under section 488 of the Code of Criminal Procedure, the learned Magistrate ordered a distress warrant to issue in respect of the maintenance due to the respondent wife for both the said periods. It is against that order that the husband has approached this Court in revision. I am bound by the decision of Bavdekar J. in Laxman Gajus case and I must, therefore, hold, as the learned Magistrate did, that the order for maintenance under section 488 passed in favour of the respondent-wife in the present case did not ipso facto come to an end by reason of their reconciliation but would continue to subsist and be in force unless and until it was cancelled by the Court on an application made under section 489 of the Code.

2. Bavdekar J. has, however, not considered the further question that arises before me viz, whether the operation of an order for maintenance passed under section 488 is suspended during the time that the two spou3es are reunited and the wife actually lives with her husband. As far as that is concerned, I have no doubt that the operation of the order would stand suspended during that· period, for the entire basis of such an order is the neglect or refusal of the husband to maintain his wife. Happily, I am supported in that view by a decision of a Division Bench of the Gujarat High Court in the case of Mulchand v. Bai Amthi2 in which, after an exhaustive review of the authorities, including the decision of Bavdekar J. in Laxman Gajus case which was approved, it was held that once an order is passed under section 488 it subsists until it is cancelled or set aside by a competent Court under sub-section (5)

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