An order for maintenance passed under S. 488(1), Criminal P.C. in favor of a wife would not cease to be operative if after a brief period of cohabitation, the wife again lives separately from her husband. The order would remain under suspension during the period of cohabitation and would revive when the wife again lives separately from her husband unless and until it is canceled by the competent authority in a proper proceeding under Sub-S. (5) of S. 488, Criminal P.C.

Judgement

NARASIMHAM, C. J. :- This is a petition by a Hindu husband against an order dated 17-1-1953, of Shri N.V.R. Murty. First Class Magistrate of Dasapalla directing the sale of the petitioners paddy in enforcement of an order for payment of maintenance to his wife, passed against him by another Magistrate.

2. The admitted facts are as follows : The original order under S. 488(1), Criminal P.C. directing the petitioner to pay a monthly maintenance of Rs. 30/- to his wife (opposite party) was passed by Shri P. Rama Rao, Magistrate, First Class, Dasapalla, on 6-5-1953. The opposite party took steps for enforcement of that order, but subsequently on 20-8-1953 did not press for the same saying that she was reconciled with her husband.

Prom 20-8-1953 the two began to live together. But on 14-6-1954 the opposite party left her husband for the second time and went away to her fathers place. Then, on 30-7-1954, she applied to the Court for realisation of the arrear of maintenance due to her, from the date on which she left her husband for the second time and began to live separately. Notice was issued to the petitioner under Sub-S. (3) of S. 488, Criminal P.C., and he objected to the enforcement of the order on the ground that his wife was living in adultery.

The learned Magistrate rejected his petition on the ground that while taking steps under Sub-S. (3) of S. 488 to enforce an order of maintenance he had no jurisdiction to enquire into those matters. He further pointed out that if the allegations of the petitioner were true it was open to him to apply under Sub-S. (5) of S. 488 for cancellation of the order for maintenance. Thereupon, on 18-5-1955 the petitioner filed a separate application under Sub-S. (5) of S. 488, Criminal P.C. for cancellation of the order of maintenance and also asked for an adjournment of the proceeding for enforcement of the order for payment of maintenance.

The learned Magistrate refused to grant him adjournment and directed the issue of a distress warrant for the realisation of arrear of maintenance due. There was some delay due to the petitioner taking up the matter to the Sessions Judge. The petitioner having been unsuccessful there, has come up to this Court in revision.

3. The main contention of Mr. H. Mohapatra on behalf of the petitioner is that when the opposite party settled her dispute with the petitioner and began to live with him with effect from 20-8-1953, the previous order of the Magistrate dated 6-5-1953 directing payment of maintenance at Rs. 30/- per month ceased to be operative and that it would not revive when she again left her husband on 14-6-1954. Hence he urged that the order of the Magistrate, dated 17-1-1956, directing the sale of the attached paddy was without jurisdiction.

4. This revision thus involves an interesting question as to whether an order of maintenance passed under S. 488(1), Criminal P.C. in favour of a wife would not revive if after a brief period of cohabitation, the wife again lives separately from her husband. On this question there is a sharp conflict amongst the various High Courts in India.

The Madras High Court, in Venkayya v. Raghayamma, AIR 1942 Mad 1 (A) overruled an earlier single Judges decision of that High Court in Kanagmmal v. Dandar Nadar, AIR 1927 Mad 376 (B) and held that on the resumption of cohabitation the order or decree for maintenance became ineffective. If the wife is compelled to leave her husband after resuming cohabitation she should apply for a fresh decree.

The learned Judges of the Madras High Court followed the decision of the Rangoon High Court in Ellen Ma Noo v. William Po Thit, AIR 1924 Rang 314 (C). Doubtless these two decisions related to decrees for maintenance passed by Civil Courts and not to orders for maintenance passed under S. 488, Criminal P.C. But in a later case, Munuswami Pillai v. Doraikannu Ammal, AIR 1946 Mad 222 (D) the Division Bench decision in AIR 1942 Mad 1 (A) was followed in respect of an order under S. 488, Cr