An order for maintenance under Section 488 of the Code of Criminal Procedure remains in force until it is canceled by the Magistrate in appropriate proceedings under Sub-section (5) of Section 488, even if the parties resume cohabitation temporarily.

S.B.Capoor, J.

1. Mukand Singh has filed a petition for revision of the order of the learned Sessions Judge, Bhatinda, dated 13-2-1957, upholding the order of Magistrate 1st Class, Bhatinda, dated 22-10-1956, whereby he was directed to pay arrears of maintenance allowance to his wife Shrimati Kartar Kaur, who will hereafter be referred to as the respondent.

2. The facts are that Kartar Kaur had obtained an order under Section 488 of the Code of Criminal Procedure for the amount of Rs. 15/- per mensem as maintenance allowance to her by her husband Mukand Singh. The maintenance allowance was paid for some months but as alleged by Kartar Kaur, Mukand Singh took her to his house in March, 1954, and the parties lived together for a few months. After she had become pregnant from him, Mukand Singh turned her out in November, 1954, after maltreating her and she gave birth to a daughter in the house of her father. She prayed for realisation of the arrears of maintenance allowance and her application was met by the contention that she was living in adultery and could not therefore claim maintenance from Mukand Singh. The parties produced evidence in the Magistrates Court and he came to the conclusion that the plea as to Kartar Kaur living in adultery could not be believed. This conclusion was affirmed by the learned Sessions Judge, Bhatinda, before whom the matter was taken in revision by Mukand Singh. In the Sessions Court, a legal point was taken on behalf of the petitioner to the effect that on the admission of the respondent that she had resumed co-habitation with the petitioner, the maintenance order became ineffectual and inexecutable. This contention was repelled by the learned Sessions Judge, but has again been stressed in revision in this Court though the objection as to the respondent living in adultery was given up.

3. The sole question therefore now is whether the maintenance order is not now capable of enforcement on account of the parties having lived together & resumed cohabitation for a few months. On this question, there is conflict of views between the various High Courts. Rangoon High Court in Ellen Ma Noo v. William Po Thit, AIR 1924 Rang 314 (A), held that resumption of the co-habitation by the wife removed the very basis of the order which were neglect and refusal to maintain and accordingly that order became ipso facto annulled. This view was followed in Venkayya v. Raghavamma, AIR 1942 Mad 1 (B). Both these cases relate to decrees for maintenance passed by civil Courts, but in Munuswami Pillai v. Doraikannu Ammal, AIR 1946 Mad 222 (C), the same principle was applied on an order under Section 488 of the Code of Criminal Procedure.

4. The Allahabad, Calcutta, Lahore, Nagpur and Orissa High Courts have, however, held that an order once passed under Section 488 of the Code of Criminal Procedure remains in force till it is cancelled on the grounds set out in Section 488 (5) though on temporary reunion the operation of the order would remain suspended.

5. Reference in this connection may be made to Pearey Lal v. Mst. Naraini, AIR 1935 All 977 (D); Parul Bala Debi v. Satish Chandra, AIR 1923 Cal 456 (E); Mt. Zauhra Bi v. Mahomed Yusaf, AIR 1930 Lah 1043 (F); John P. E. Coelho v. Mrs. Blanche Coelho, AIR 1936 Nag 228 (G), and the view taken by the learned Chief Justice of Orissa in Kasinath Panda v. Padambati Debi, (S) AIR 1956 Orissa 199 (H), that an order for maintenance under Section 488 of the Code of Criminal Procedure remains in force until it is cancelled by appropriate proceedings under that section despite resumption of co-habitation between the husband and the wife.

6. As observed by a Division Bench of Lahore High Court in Mt. Roshan Bano v. Azim, AIR 1943 Lah 59 (I), Section 488 of the Code of Criminal Procedure provides a special remedy for neglected wife, and the chapter in which that section appears is self-contained so far as the procedure to be adopted in such cases is concerned.

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