Mukand Singh vs Mst. Kartar Kaur

S.B. Capoor, J.—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.

The facts are that Kartar Kaur had obtained an order u/s 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 Magistrate''s 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.

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 Vasantam Venkayya Vs. Vasantam Raghavamma, Both these cases relate to decrees for maintenance passed by civil Courts, but in Munuswami Pillai Vs. Doraikannu Ammal, the same principle was applied on an order u/s 488 of the Code of Criminal Procedure.

The Allahabad, Calcutta, Lahore, Nagpur and Orissa High Courts have, however, held that an order once passed u/s 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.

Reference in this connection may be made to Pearey Lal Vs. Mt. Naraini, Parul Bala Debi Vs. Satish Chandra Bhattacharjee, Mt. Zauhra Bi v. Mahomed Yusaf AIR 1930 Lah 1043; John P. E. Coelho v. Mrs. Blanche Coelho AIR 1936 Nag 228 and the view taken by the learned Chief Justice of Orissa in Kasinath Panda Vs. Padambati Debi, that an order for maintenance u/s 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.

As observed by a Division Bench of Lahore High Court in Mt. Roshan Bano v. Azim AIR 1943 Lah 59 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.

Some of the sub-sections and provisions in Section 488 of the Code of Criminal Procedure are not arranged in logical sequence. For instance, Sub-section (3) relates to the enforcement of the maintenance order passed under Sub-section (1) and Sub-section (4) seems to lay down the conditions on proof of which the wife would not be entilled to obtain an order for maintenance. These conditions are--

(1) If she is living in adultery, or

(2) If without any sufficient reason, she refuses to live with her husband, or

(3) If they are living separately by mutual consent.

Sub-section (5) provides that on proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.

Sub-section (5) appears to contemplate the eventuality of there having been a reconciliation between the husband and wife after an order for maintenance has been made in favour of the wife and the wife subsequently refusing without sufficient reason to live with her husband. In such an eventuality he would be entitled to apply to the Magistrate for cancellation of the order.

Inasmuch as Section 488 of the Code of Criminal Procedure and Chapter XXXVI in which that section appears are self contained so far as the procedure to be adopted in such cases is concerned, it is of little help to discuss the decisions of the U. K. Courts referred to in the judgment of the learned Judges in Kasinath Panda Vs. Padambati Debi,

It follows that the order for maintenance, as in the present case, remains in force unless it is cancelled by the Magistrate in appropriate proceed ings under Sub-section (5) of Section 488 of the Code of Cri minal Procedure. I would therefore dismiss the revision petition with costs, which I assess at Rs. 100/-.