Neelakanta Muthuraja vs Chinnammal and another

The first respondent/plaintiff filed the suit in O.S.No.590 of 1983 on the file of the District Munsif Court, Thuraiyur against the petitioner/first

defendant and second respondent/second defendant for maintenance and for possession of the first item in the suit properties. The court below in

the judgment dated 8.2.1998 directed the petitioner to pay the sum of Rs.250/-per month from the date of filing of the suit till the life time of the

first respondent towards maintenance, besides creating a charge over the half share of the second item of the suit property, towards payment of the

said maintenance, and for declaration that the first respondent/plaintiff is entitled to the first item of the suit properties, and to get possession of the

same from the defendants. The first respondent/plaintiff filed the execution petition in E.P.No.68 of 1991 to recover the first item of the suit

properties and possession was taken on 2.5.1991. Since the said maintenance was not paid as directed, to recover the same, the first

respondent/plaintiff filed the present execution petition in E.P.No.104 of 1995. In the said Execution petition, the petitioner filed counter stating that

after the decree there was a panchayat and in the panchayat, a sum of Rs.25,000 was paid, and the first respondent waived the balance amount

towards maintenance. Pursuant to the said panchayat, the petitioner and the first respondent resumed cohabitation only for a period of six months,

prior to the filing of the execution Petition, and she again went out of the house and is living separately. On the basis of the abovesaid pleadings, the

executing court directed the petitioner/husband to pay the maintenance till the date of the alleged resumption of cohabitation, that is, till ''10.4.1990.

Aggrieved, the petitioner/husband has filed the above revision.

The learned counsel appearing for the petitioner has submitted that the decree obtained by the first respondent/wife against the

petitioner/husband for maintenance in O.S.No.590 of 1983 has become ineffective and so cannot be enforced. On the basis of the said

submission, the learned counsel has further submitted that the executing court is not correct in entertaining the execution petition and directing the

petitioner to pay the amount towards maintenance till 1990. In support of his submission, the learned counsel has relied on the decisions in

Venkayya v. Raghavamma, AIR 1942 Mad. 1, which is referred to in Perundevi Ammal Vs. Amavasikan and Others, , and the decision in P.S.

Muthukrishna Chettiar Vs. Meenakshi Ammal and Another, .

Per contra, the learned counsel appearing for the respondent has submitted that the abovesaid decisions cannot be relied on, after the enactment

of the Hindu Adoptions and Maintenance Act, 1956. The learned counsel relying on Sec. 25 of the said Act has submitted that any alteration or

change should be only in accordance with the said section. In support of his submission, he sought to rely on the decisions in Meenakshi Ammal

Vs. P.S. Muthukrishna Chettiar, , Tejkumar Balakrishna Ruia Vs. A.K. Menon and another, and in Dattu Bhau Undage and Others etc. Vs.

Tarabai Dattu Undage and etc., .

On the basis of the abovesaid pleadings and arguments of the respective learned counsel and also on the basis of the finding that there was

resumption of cohabitation between the parties and their living together for a period of six months, after obtaining the decree for maintenance, I

have to decide the issue raised before me.

Under the old Hindu Law a person was under personal obligation to maintain the wife from the moment of marriage, whether he is possessed of

any property or not. Though under the Hindu Women''s Rights to Property Act of 1937, women were conferred with rights of succession, their

rights of maintenance were not affected. But option was given to the Hindu widow to claim a Share in the property or maintenance, whichever was

more favourable to her. After the Hindu Married Woman''s Rights to Separate Residence and Maintenance Act, 1946, which came into force on

23.4.1946, every married woman becomes entitled to separate residence and maintenance against her husband on one or more of the seven

grounds mentioned therein. Thereafter, in 1956, The Hindu Adoptions and Maintenance Act was enacted.

Before coming into force of the said Act, similar issue had arisen before this court, and the Division bench of this court in Venkayya v.

Raghavamma, AIR 1942 Mad. 1 has held that a decree obtained by a Hindu wife against her husband for maintenance differs in no important

respect from an order for permanent alimony embodied in a decree for judicial separation, and therefore when the wife subsequent to the decree

resumes co-habitation with her husband, the English Principle can be applied, namely, that the decree becomes ineffective and cannot be enforced.

If she is compelled to leave him after resuming co-habitation she should apply for a fresh decree. The Division Bench also considering the scope of

O.21, R.2 of the CPC Code with respect to such a decree, has held as follows:-

In the case before us, it was within the knowledge of the court from its own records that the decree sought to be executed had been paid. The

court took the view that no question of 0.21, R.2 arose as there was no question of an uncertified adjustment. The only question was whether there

was any provision in the CPC which compelled the court to perpetrate what it knew to be an injustice, and the decision was that with those facts

within its knowledge execution should be refused. I think that the position is analogous to this case. It was within the knowledge of the executing

court that the whole basis of this decree had disappeared by set of parties. I think that it would be equally wrong for such a decree to be executed

with that knowledge as it would be to execute the decree in the case to which I have just referred. I desire to emphasis again, as my Lord has

done, that nothing in the decision in any way affects the law as it has been held to be by this High Court in relation to O.21, R.2 of the Code"".

According to the Division Bench, the decree can be annulled pursuant to the conduct of the parties, viz., resumption of co- habitation.

In Venkata Krishnayya v. Lakshmamma, A.I.R.1944 Mad. 17, Horwill, J., has given importance to the intention of the wife to abandon the

rights under the decree. From the said decision, it is clear that only if the wife abandons her rights got under the decree by adopting a fresh

relationship with her husband, such a decree would vanish and cannot be executed.

Yahya Ali, J., in Kuppuswami v. Jagadambal, A.I.R.1947 Mad. 423,while dealing with the order passed under sec.488, Criminal Procedure

Code, and following the decision in Venkayya v. Raghavamma, AIR 1942 Mad. 1 has held as follows:-

I must hold that the maintenance order passed in M.C.NO.40 of 1944 ceased to be effective automatically on the resumption of cohabitation

between the petitioner and the respondent and that learned Magistrate ought in those circumstances to have cancelled the order when an

application was made under S. 489 seeing that an attempt was being made by the respondent to enforce the order"".

Rajamannar, C.J., as he then was, in Singaravelu v. Pattammal, AIR 1949 Mad. 429, while dealing with similar issue, and with reference to the

decision in Vasantam Venkayya Vs. Vasantam Raghavamma, has held as follows:-

It is not difficult to sustain the decision in this case on a principle analogous to the satisfaction of a decree. The husband who was bound to

maintain the wife was directed by the decree to pay her a certain sum of money towards her maintenance. If subsequently he herself came and

lived with him and he maintained her there would be protanto a satisfaction of the decree"".

The abovesaid decision has been explained by Krishnaswami Nayudu, J., as he then was, in Perundevi Ammal Vs. Amavasikan and Others, ,

in which it has been held as follows:-

I do not think that the observation of the learned Chief Justice could be understood as expressing an opinion contrary to the principle laid down in

Venkayya v. Raghavamma, AIR 1942 Mad.l : ILR 1942 Mad 24 where the decree was held to be ineffective not on the basis that the very basis

or the foundation of the decree has become demolished in the sense that the causes that rendered the separation necessary must be deemed to

have ceased to exist after reconciliation being evidenced by the resumption of cohabitation.

It is not on the principle of the satisfaction of the decree that the decree could be held to be ineffective but on the ground that by resumption of

cohabitation the parties must be deemed to have reconciled themselves and any difference which they had and which were the basis for the

maintenance decree must be considered to have ceased to exist and the basis or the foundation of (he decree must be considered to have become

non-existent"".

Ganapattia Pillai, J., as he then was, in Muthukrishna Chettiar v. Meenakshi Ammal, 1958 (II) MLJ 82 while dealing with the decisions in

Venkayya v. Raghavamma, AIR 1942 Mad. 1, Singaravelu alias Singaram Chettiar Vs. Pattammal, , Perundevi Ammal Vs. Amavasikan and

Others, , in Vemuru Venkata Krishnayya Vs. Vemuru Lakshmamma, , and in Mikkilineni Raghavayya Vs. Mikkilineni Rangamma and Another, ,

clarified the abovesaid decisions regarding single Act of union between the husband and wife, and the union due to the result of deceit or

compulsion, and ultimately the learned Judge following the principles laid down in Venkayya v. Raghavamma, AIR 1942 Mad. 1, has held as

follows:-

It was urged by the learned counsel for the respondent that unless it was established that the wife had abandoned her rights under the decree, a

casual union with her husband should not be taken as indicating such conduct on her part. It is true that, if the single act of union between the

husband and wife was the result of deceit or compulsion, there might be some justification for the argument that the wife should not be deemed to

have abandoned her right under the decree by submitting to such intercourse with her husband. Except the allegation in the counter-affidavit that

the wife was inveigled into the situation, by which she conceived the child, there is nothing else in this case to show that any deceit was practiced or

any compulsion was resorted to by the husband to induce the wife to submit to sexual intercourse. The allegations in the plaint in the prior suit

clearly indicate that the wife was anxious to get separate maintenance from her husband, mainly because the husband was a spend thrift and was

freely alienating all his properties. There does not seem to have been really any serious quarrels between the husband and wife arising out of either

cruelty on the part of the husband or neglect in the sense that the husband wantonly refused or neglected to maintain his wife. Having regard to this

background of the relationship between the husband and wife, I am satisfied from the affidavit of the appellant that the wife has resumed

cohabitation with her husband, though it might be that the husband is visiting the wife in his mother-in-law''s house. The law does not require mat

the husband and wife should resume cohabitation only under husband''s roof. Having regard to the customs and manners of our people, it is equally

possible for a Hindu husband to resume cohabitation with his wife even while she is living in her mother''s place.

All the abovesaid decisions were based on English Matrimonial Law. So, the subsequent Division Bench in Meenakshi Ammal Vs. P.S.

Muthukrishna Chettiar, has raised a doubt about the application of the principles laid down in Venkayya v. Raghavamma, AIR 1942 Mad. 1 to the

present days. The Division bench, has held as follows:-

If the rule is that a decree for separate maintenance passed in favour of a Hindu wife ceased to be effective once the wife goes and lives with her,

husband because the very basis of the decree has disappeared, viz., the living apart by the wife on justifiable grounds, then the question will arise in

this case whether the plaintiff has gone back to live with her husband. It is not clear to us if a decree for separate maintenance would automatically

be extinguished by the mere fact that after the decree the husband and the wife have sexual intercourse, though the wife continues to live apart from

the husband.

The term ""cohabitation"" has been used in several of the decisions dealing with the subject, but it is a matter for argument what exactly is meant by

cohabitation in so far as it is material for the application of the rule. We refer to this aspect because on the affidavit it does not appear- and

certainly it is not admitted - that the plaintiff and the first defendant are living together and that she is being maintained by her husband. On the other

hand, her allegation is that she continues to live with her parents and the first defendant is living with his brother, the second defendant, separately.

In this view, it may be necessary to determine the question of fact whether the wife has gone back to her husband. To decide that question it may

be necessary to take evidence"".

While dealing with this issue under the provisions of the Criminal Procedure Code, the Apex Court, in Bhupinder Singh Vs. Daljit Kaur, ,

relying on the ruling of this Court in S. Natesa Pillai Vs. Jayammal, , and in AIR 1931 Rang. 89, has held as follows:-

We are concerned with a code which is complete on the topic and any defence against an order passed under S. 125,Cr.P.C., must be founded

on a provision in this code. Section 125 is a provision to protect the weaker of the two parties, namely, the neglected wife. If an order for

maintenance has been made against the deserter it will operate until vacated or altered in terms of the provisions of the code itself. If the husband

has a case under S. 125(4),(5) or S. 127 of the code it is open to him to initiate appropriate proceedings. But until the original order for

maintenance is modified or cancelled by a higher court or is varied or vacated in terms of section 125(4) or (5) or S. 127, its validity Survives. It is

enforceable and no plea that there has been cohabitation in the interregnum or that there has been a compromise between the parties can hold

good as a valid defence. In this view we hold that the decisions cited before us in favour of the proposition contented for by the petitioner are not

good law and that the view taken by Sir Shadi Lal Chief Justice is sound"".

Though the learned counsel appearing for the petitioner has tried to distinguish the abovesaid decision, saying that the said judgment arises out of a

section 488, Criminal Procedure Code, I do not find any difference regarding the principles to enforce the order or decree, as the case may be, to

recover maintenance. This view is supported the decision in Dattu Bhau Undage and Others etc. Vs. Tarabai Dattu Undage and etc., .

The Apex Court has also found that a statutory order can ordinarily be demolished only in terms of the statute. Following the said judgment of

the Apex Court and also on consideration of the principles laid down in Venkayya v. Raghavamma, AIR 1942 Mad. 1, Kuppuswami v.

Jagadambal, AIR 1947 Mad.423, S. Natesa Pillai Vs. Jayammal, and the scope of section 18 and 25 of the Hindu Adoption and Maintenance

Act 78 of 1956 (hereinafter referred to as ""the act""), the learned Judge of the Bombay High Court in Dattu Bhau Undage and Others etc. Vs.

Tarabai Dattu Undage and etc., has held as follows:-

Both the Advocates viz., Shri Hombalkar and Shri Rane, contented that an order under S.488 of the old Cr.P.C.(i.e.S. 125 of the crl.P.C. 1973)

would be quite different from a decree for maintenance passed by a Civil Court. It was submitted that an order passed by a Criminal Court would

be a sort of a summary remedy so as to avoid any vagrancy of a wife by providing her urgent maintenance. I am not, however, able to accept the

contention that a summary remedy of maintenance under Crl.P.C. would stand on a different footing from a decree of a Civil court, particularly

when one has to decide the executability or otherwise of the maintenance order on account of the alleged resumption of cohabitation. In my

opinion, a decree for maintenance has to be executed as per the terms thereof and there cannot be any modification in the decree. The question as

to whether such modification is permissible is considered by this court in the case of Maharana Shri Ranmaisangji v. Bai Shri Kundankumar, 1902

II R 26 Bom. 707. There was an unconditional decree for maintenance in favour of a wife. She applied for execution of that decree. The

judgment-debtor-husband raised an objection that by reason of the conduct of the wife she had forfeited her right for maintenance. The Division

Bench of this court has held that no modification of a decree can be allowed in execution thereof on grounds not recognised in the decree itself and

that it would be necessary to file a separate suit.

It is true that Sub-secs.(4) and (5) of S. 125 as also S. 127 provide a remedy for alteration of the maintenance order passed by a Criminal Court.

However, that would not be a distinguishing factor for the purpose of holding that execution of a Civil Court''s decree can be resisted by raising a

contention that the parties have resumed cohabitation . S. 25 of the said Act provides for the alteration of the amount of maintenance on proof of

change of. circumstances. It is needless to say that such an alteration would also include total quashing of the maintenance order if the

circumstances are alleged and proved that such a quashing is necessary. The provisions of Ss. 18 and 25 of the Hindu Adoptions and Maintenance

Act are practically similar to the provisions of Ss. 125 and 127 of the Crl.P.C. Thus, on principle there cannot be any difference between an order

by a criminal Court under S. 125 and a decree by a Civil Court. In view of this position, it will be very difficult for me to accept the contention of

the judgment-debtor in both these matters that they can successfully resist the execution of. the decree on the ground that the husband and wife

have resumed cohabitation after passing of the decree"".

Section 18 of ""the Act"" reads that ""subject to the provisions of this section, a Hindu wife , whether married before or after the commencement

of this Act, shall be entitled to be maintained by her husband during her lifetime"". Sub-section (2) of Sec. 18 enumerates the circumstances under

which a Hindu wife shall be entitled to live separately from her husband without forfeiting in her claim to maintenance. The object of this section is

based on the obligation to maintain the wife which is personal in character and it arises from the very existence of the relationship between the

parties. Section 23 of ""the Act"" gives discretion to the court to determine the quantum of maintenance to be awarded haying regard to the

considerations set out in sub-section (2) or sub-section (3) of Section 23 as the case may be, so far as they are applicable. Section 25 of the ""the

Act"", which is material for consideration of the case, reads as follows:-

Amount of maintenance may be altered on change of circumstances: - The amount of maintenance, whether fixed by a decree of court or by

agreement, either before or after the commencement of this Act, may be altered subsequently if there is a material change in the circumstances

justifying such alteration"".

Section 25 of ""the Act"" is only a codification of the existing provision of the Hindu Law which always confers upon the Court to alter the

mainteance where there is a material change in the circumstances. Briefly speaking, the law before the introduction of the Hindu Adoptions and

Mainteance Act was that, where a decree was passed for mainteance and it contained provisions for making an application to alter the quatum of

the mainteance on account of change of circumstances, then and then only an application could be made. Otherwise, the court had no jurisdiction

to alter the amount of a decree by means of an application, and it was always essential to institute a suit for the purpose. The position has not

changed under the Act. While section 25 of the Hindu Marriage Act expressly lays down a procedure by way of an application, Section 25 of the

Hindu Adoptions and Mainteance Act does not lay down any such procedure. Thus u/s 25 of the latter Act, alteration in the amount of

maintenance fixed by a decree cannot be ordered by an application, unless there is provision in the decree itself granting liberty to the decree-

holder to have such variation made by way of an application. In the absence of such provision, the amount of mainteance fixed by a decree can be

varied only by way of a suit.

So, it is well settled that a decree can be altered, varied or nullified only by way of another decree or by way of an agreement, Subba Rao,

C.J., as he then was, speaking for the Bench of Andhra Pradesh in S. Kameshwaramma Vs. S. Subramanyam and Others, , has observed as

follows:-

The Act both amended and codified the law relating to mainteance among Hindus. The word ""agreement"" is admittedly comprehensive enough to

take in an agreement of either description. The legislature does not expressly or by necessary implication exclude any category of agreements fixing

mainteance, from the operation of section. If there was a valid reason for binding the parties to the terms agreed upon between them, there would

also be equal justification for protecting the widow from being bound by an unjust agreement precluding her from claiming enhanced mainteance in

changed circumstances. (Italics by me). We do not, therefore, see any justification not to give the widest meaning to the word ""agreement"" which it

can bear. We hold that, notwithstanding the agreement by the widow not to claim higher rate of mainteance in the changed circumstances, she

would be entitled to enhanced mainteance, under the provisions of the Act, if there was a material change in the circumstances"".

While considering the scope of variation of a decree, the learned Judge of the Patna High Court, in the decision in Binda Prasad Singh Vs.

Smt. Mundrika Devi and Another, has observed that the decree can be altered only by way of another decree, and further held as follows:-

But there are no words either in the 25th section or in any other section of the Act to indicate that the law in regard to the procedural aspect as

settled by various judicial decisions before enactment of the Act was in any way intended to be, or was altered. The section merely provides that

the amount of maintenance may be altered; it does not say that decree in all cases can be amended by a mere application. In my opinion, therefore,

if the amount of maintenance is fixed by an agreement, it can be altered either by an agreement or by a decree of an appropriate court in a suit

instituted by a party to the agreement. If the amount of mainteance is fixed by a decree, it can be altered by amendment of the decree in case there

were express terms in it providing for future modification or amendment of the decree. But if there are no such words any party to the decree, who

wants its modification or amendment as respects the amount of maintenance, has got to file another suit and obtain another decree superseding the

earlier one, to all intents and purpose, will be an alteration of the previous decree"".

From the abovesaid decisions, it is very clear that the decree for maintenance got by the first respondent/wife cannot be altered by an agreement

and it can be altered only by the Court by filing another suit.

From the above discussions regarding the scope of Section 25 of ""the Act"", and also from the principles laid down by the Apex Court in

Bhupinder Singh Vs. Daljit Kaur, , the case of the petitioner/husband that the decree had vanished and cannot be executed, cannot at all be

accepted, as the earlier decree has not been varied or altered or annulled by way of another decree.

For the foregoing reasons, I do not find any grounds to interfere with the order of the Court below. Accordingly, this revision is dismissed with

the costs of Rs. 1,000.