Resumption of cohabitation between a husband and wife, particularly in the context of Hindu society, nullifies a previously obtained maintenance decree, as it implies reconciliation and wipes out the basis of the decree.

JUDGMENT :- The plaintiff appellant instituted a suit for maintenance O. S. No. 479 of 1940 on the file of the District Munsifs Court of Arni, against her husband Bhashyam Aiyangar and obtained a decree on 21-3-1942. The grounds on which separate maintenance was granted were cruelty, neglect and abandonment by the husband and that he was also keeping a concubine. On 27th July 1943 Bhashyam Aiyangar sold the suit property which was charged with the maintenance decree. The sale was for the purposes of paying off the marriage expenses of Bhasham Aiyangars daughter who instituted a suit O. S. No. 481 of 1949 and obtained a decree, Bhashyam Aiyangar, in executing the sale in favour of the first defendant, did not disclose that the property was charged with a decree for maintenance in favour of his wife and the sale was free from any encumbrance. But there can be no doubt that the property was charged with the maintenance under the decree in O. S. No. 479 of 1940 and the property purchased by the first defendant must therefore be subject to the charge in favour of the plaintiff.

The plaintiff executed her decree by filing E. P. No. 660 of 1948 for attachment and sale in enforcement of the charge decree and in execution the plaintiff herself purchased the suit property in court auction on 5th January 1949, and also purports to have obtained delivery of possession.

2. The present suit out of which this appeal arises is instituted by the plaintiff for recovery of possession of the property on the ground of trespass by the first defendant. The action was resisted on the ground that the plaintiff resumed cohabitation with her husband prior to the execution petition E. P. No. 660 of 1948, that they were living as husband and wife for four or five years and that she even gave birth to a child on 16th December 1948 as established by Ex. B.2, an extract from the birth register.

The contention is that on resumption of cohabitation the maintenance decree became wiped out and it does not therefore become executable and any sale to the plaintiff in pursuance of such a decree would not confer any rights on the plaintiff to the suit property. The decision in Venkayya v. Raghavamma, AIR 1942 Mad 1 (A), was relied on in support of the defence.

The trial court did not accept that mere resumption of cohabitation without the removal of the grounds for obtaining the separate maintenance, would be sufficient to make the decree ineffective and unenforceable and found that the husband visited the wife at her aunts place twice or thrice occasionally in ten days or a fortnight in between during which period she had physical union with him, resulting in the birth of the child and that it would not be sufficient resumption of cohabitation having the effect of nullifying the maintenance decree.

In appeal the learned District Judge took a different view and held that mere resumption of cohabitation with the husband would be sufficient to render the decree ineffective and that was the effect of the decisions relied upon and it was not necessary further to show that the causes which rendered it necessary for a separate maintainance should be shown to have been removed, and that the effect of the resumption of cohabitation by the wife puts an end to the very basis of the decree and puts the parties back precisely where they were before the decree was granted.

The learned Judge also cited in support of his conclusion the judgment of Basheer Ahmed Sayeed, J., in Kaliammal v. Nachammal, 1951-2 Mad LJ (S.N.) 4 (B), where the learned Judge held that the entire decree becomes wiped out by reason of the resumption of cohabitation.

3. In AIR 1942 Mad 1 (A), after the wife obtained a maintenance decree against her husband they decided to live together happily and the wife returned to the husband and they lived so for over five years. During this period the wife bore a son to her husband. Five years thereafter she applied for execution of the decree which she had obtained