Jogi Nageswaramma vs Jogi Siva Rao

N.D. Patnaik, J.—The petitioner who is the wife of respondent filed suit O.S. 143 of 69 on the file of Principal District Munsiff Court, Machili-patnam for maintenance. In that a compromise decree was passed according to which the respondent has to pay six bags of paddy to the petitioner every year towards maintenance. The petitioner-decree-holder filed E.P. 219/84 for realisation of the arrears of maintenance due to her by arrest of the judgment debtor raised the following objections: (1) that after the decree was passed the petitioner married one Kanka Gujju during the summer of 1970 and eversince she is living in adultery with him and therefore she is not entitled to claim maintenance ; (2) the cost of the paddy bags is not properly calculated ; (3) that he has no means to pay the amount and therefore he cannot be arrested. The learned District Munsif before whom the execution petition is filed enquired into the matter. On behalf of the petitioner one witness was examined and on behalf of respondent four witnesses were examined. Basing on their evidence the learned District Munsif accepted the respondent''s case that the petitioner is living with the said Gujju and is leading adulterous life and therefore she is not entitled for maintenance and accordingly dismissed the execution petition. As against that the present revision is filed.

The learned counsel for the petitioner contended that as long as the decree for maintenance is not set aside the executing Court cannot go behind the decree and refuse to execute the decree on the allegation that the wife is living in adultery. When it is the contention of the husband that the petitioner is living in adultery, he can file a petition for divorce and obtain divorce from the Court or tile a suit for cancellation of maintenance of decree. But till the decree is set aside, the respondent is bound to pay the maintenance. On the other band, learned counsel for the respondent has contended that the wife forfeits to claim maintenance, if she is unchaste. This contention is based upon Section 18(3) of the Hindu Adoptions and Maintenance Act, 1956 which reads as follows:

"A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste, or ceases to be a Hindu by conversion to another religion".

The learned counsel for the respondent has relied .upon several decisions in support of his contention that when a wife becomes unchaste she forfeits the claim for maintenance. In B. Anasuya v. B. Rajaiah 1971 (1) An W.R. 191 it was held that on resumption of cohabitation the decree for maintenance is annulled. It was pointed out:

"Whether it is a consent decree or one made or one passed on the adjudication by the Court, in either case, the question is whether its effect is not demolished by the Subsequent conduct of the parties."

This decision follows an earlier decision of the Madras High Court reported in Vasantam Venkayya v. Vasantam Raghavamma ILR (1942) Mad. 24 wherein it is held that when there is resumption of cohabitation it demolishes the effect of the decree. But they were cases where the wife resumes cohabitation with the husband and they live together, the decree becomes ineffective. When the wife lives with the husband she is maintained by her husband and there is no question of husband providing for her separate resident and maintenance. In the present case as was stated above the contention of the husband is that by virtue of the subsequent conduct of the wife i.e., living in adultery, she became disentitled to claim maintenance and therefore the decree cannot be executed. It is further contended by the, learned counsel that this question has to be decided by the executing Court u/s 47 of the CPC which provides that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. In Pusapati Ramabhadra Raju Vs. Ayitha Ramanna and Others, it was held that the executing Court can certainly take note of the altered circumstances but whether or not in a particular case it should allow execution to proceed and leave the party who Considers himself aggrieved to file a separate suit should depend upon the circumstances of that case. In that case it was also held that the objection should not be entertained in execution. It should be decided by way of separate suit as it involved an enquiry into the validity of the notice to quit. In the instant case since the question is whether the wife is living in adultery involves a detailed enquiry by adducing necessary evidence, I feel that instead of deciding the matter in execution u/s 47 C. P. C. the husband can file a separate suit for cancellation of the decree for maintenance on the ground that the wife is living in adultery. At this stage it is useful to note that in Kandasami Filial v. Murugammal ILR 19 Mad. 6 wherein a judgment-debtor filed the suit to have the decree for maintenance set aside alleging that his wife is living in adultery, it was held that ''he plaintiff''s case was established that the decree in the previous suit was set aside and that the defendant was not entitled to bare maintenance,

This question has to be considered from another angle also i.e., whether the executing Court can refuse to execute the decree. In Sunder Dass Vs. Ram Prakash, the Supreme Court has pointed out that the "executing Court cannot go behind the decree nor can it question its legality or correctness. But there is one exception to this general rule and that is that where the decree sought to be executed is a nullity for lack of inherent jurisdiction in the Court passing it, its invalidity can be set up in an execution proceeding. The executing Court can therefore entertain an objection that the decree is a nullity and can refuse to execute the decree. By doing so, the executing Court would not incur the reproach that it is going behind the decree, because the decree being null and void, there would really be no decree at all". In the instant case it is not the case of the respondent that the Court which passed the decree has no jurisdiction. So the decree is not null and void. Therefore, the executing Court cannot go behind the decree. If (he respondent contends that the petitioner is living in adultery subsequent to the passing of the decree, the proper course for him is to file a separate suit for cancellation of the maintenance decree and until the decree is set aside it has to be executed by the executing Court.

Therefore, the order of the lower Court dismissing the execution petition on the ground of the petitioner living in adultery is set aside, since the lower Court has not considered the two other objections raised by the husband i.e., the value of the paddy is not properly calculated and that the judgment-debtor has no means to pay the amount, the matter is remanded to the lower Court for decision on the above aspects and disposal of the E.P. according to law. The Revision Petition is allowed accordingly. No costs.