P.S. Muthukrishna Chettiar vs Meenakshi Ammal and Another

Ganapatia Pillai, J.—The appellant in this second appeal is the second defendant in O.S. No. 83 of 1953 on the file of the Sub-Court,

Cuddalore, which was a suit instituted by respondent 1, Minakshi Ammal, wife of Palaniswami Chettiar, for the relief of partition of certain

properties into two equal shares and recovery of possession of one such share together with mesne profits. The allegation in the plaint was that the

plaintiff was the wife of the second respondent to this appeal, Palaniswami Chettiar, that she had instituted O. Section No. 137 of 1950 on the file

of the Sub-Court, Cuddalore, against her husband for separate maintenance, and that .as a result of the compromise decree in that suit, the plaintiff

obtained the right to enjoy, together with her husband, the properties in dispute, and, in case joint enjoyment was found to be inconvenient, to

claim a partition of a half share of those properties. The appellant in this second appeal is the elder brother of the husband of the first respondent.

He was examined as a witness on behalf of the first respondent in O.S. No. 137 of 1950 and he is said to have taken a leading part in bringing

about the compromise in that suit. Subsequent to the decree in O.S. No. 137 of 1950, the present appellant is said to have purchased some

properties covered by the compromise deed, over which the first respondent had obtained the compromise decree for joint enjoyment and, in the

alternative, for partition. The further allegation in the plaint was that the sale in favour of the appellant was not supported by consideration, and, in

any event, was not valid and binding on the plaintiff. The appellant resisted the suit on the principal ground that the decree passed in O.S. No. 137

of 1950 was not a compromise decree and that consequently the claim of the plaintiff for partition was based upon a private arrangement between

the plaintiff and her husband and that, since this arrangement which was reduced to writing was not registered, it was not valid. Other defences

were also raised; but it is not necessary to notice them now for the purpose of this second appeal. Both the lower Courts held concurrently that the

decree in O.S. No. 137 of 1950 was a compromise decree passed under Order 23, Rule 3, and that it did not require registration. Consequently,

both the Courts decreed the claim of the first respondent for partition.

Subsequent to the filing of this second appeal, the appellant preferred C.M-P. No. 6969 of 1956 with the prayer that the suit, O.S. No. 83 of

1953, out of which this appeal arises, should be dismissed. The affidavit in support of this application, sworn to by the appellant in this second

appeal sets forth, among other grounds, that, subsequent to the filing of the second appeal, the first and second respondents, namely the wife and

the husband had resumed cohabitation, as result of which the first respondent had conceived a child and the pregnancy was seven months old.

Consequently, the compromise decree for maintenance obtained by the first respondent is said to have become ineffective and nullified. In the

counter-affidavit filed by the first respondent, the wife, it is admitted that she is enceinte through her husband, the second respondent, though she

explains that this was the result of a casual union which took place in her mother''s house. She denies that she and her husband have been living

together either before this union or after it. The appellant filed a reply affidavit refuting this allegation of a casual union between the husband and

wife and asserting that the husband was spending considerable time in the company of his wife.

The learned Counsel for the appellant contends that, on the admission of the first respondent that she had resumed cohabitation with her

husband subsequent to the filing of the second appeal, she has lost the cause of action upon which the decree for separate maintenance in O.S.

No. 137 of 1950 was founded. Before going into the merits of this contention, I would notice an objection taken by the learned Counsel for the

respondent. It is that an enquiry into this allegation must be made by the trial Court and that the application should be made in O.S. No. 137 of

1950 to enter satisfaction of the decree on the ground now alleged. Of course, if the facts are disputed, the proper course would be to direct an

enquiry by the trial Court. The first respondent does not deny that she has conceived the child now in her womb through her husband. No

elaborate enquiry is therefore necessary to ascertain the truth of the allegation upon which this application is founded. No authority was cited

before me to contend that, to resist the present suit on the ground of resumption of cohabitation between the husband and wife, an order in O.S.

No. 137 of 1950 would be necessary. Obviously, the first respondent is seeking to enforce a remedy given to her under the decree in O.S. No.

137 of 1950 and the appellant is therefore entitled to put forward any ground which would show that that decree has now become ineffective. This

is not a case of accord and satisfaction of the decree for separate maintenance, in which case the party urging satisfaction of the decree could be

met with the plea that, so long, as a decree is not entered as satisfied, any collateral attack upon the decree would be ineffective. I therefore over

the preliminary objection of the learned Counsel for the first respondent.

A number of decisions were cited before me by both sides on the point that the maintenance decree had become ineffective by reason of the

subsequent conduct of the first respondent in resuming cohabitation with her husband. In. Singaravelu alias Singaram Chettiar Vs. Pattammal, , a

Bench of this Court had to consider the question whether a decree for maintenance obtained by a Hindu wife, which was put in execution, could

be resisted on the ground that the decree-holder was leading an unchaste life after the passing of the decree and that therefore the decree was

unenforceable. The Bench decision in Vasantam Venkayya Vs. Vasantam Raghavamma, , was distinguished and it was laid down that, whatever

might be the right in the case of Hindu wife, who had not obtained a decree against her husband for separate maintenance thereafter cohabiting

with him and bearing him a son, the facts before the Bench in question did not involve any necessity on the part of the executing Court to make an

enquiry into new allegations made in the course of execution proceedings. The principle laid down by the Bench was that the objection raised to

the execution of the decree was in the nature of an attack upon the validity of the decree based upon circumstances which arose after the passing

of the decree on the ground that the person raising the objection was not without his remedy and that such a remedy was not in execution. The

Bench upheld the decision of the trial Judge and ordered execution to proceed. It cannot be said that this Bench decision impliedly overruled the

ruling in Vasantam Venkayya Vs. Vasantam Raghavamma, . The ruling in Vasantam Venkayya Vs. Vasantam Raghavamma, , has been considered

in a number of subsequent decisions by single Judges. Krishnaswami Nayudu, J., in Perundevi Ammal Vs. Amavasikan and Others, , held on a

consideration of all the prior authorities that mere resumption of cohabitation would be sufficient to render the decree for separate maintenance

obtained by the wife against her husband ineffective and that it was not necessary to show further that the causes which rendered it necessary to

obtain a decree for separate maintenance should also be shown to have in fact been removed. He held that the effect of the resumption of

cohabitation by the wife put an end to the very basis of the decree and put the parties back precisely where they were before the decree was

passed. Similarly all the authorities on the point were considered by Basheer Ahmed Sayeed, J., in an unreported decision in S.A. No. 305 of

1949. There also the decree for separate maintenance obtained by the wife was attacked as having lost its validity on the ground that, subsequent

to the decree, the wife had resumed cohabitation with her husband and bore him a son. Following Vasantam Venkayya Vs. Vasantam

Raghavamma, , the learned Judge upheld the plea that resumption of cohabitation between the husband and wife after the decree had the effect of

nullifying it.

The learned Counsel for the respondent drew my attention to two decisions of Horwill, J., taking a slightly different view. In Vemuru Venkata

Krishnayya Vs. Vemuru Lakshmamma, , the wife, after obtaining a decree against her husband for maintenance but during the pendency of the

appeal therefrom, entered into a compromise with her husband, by which the wife agreed to suspend the operation of the decree for a while, and,

if she found that her husband had mended his ways, to relinquish her rights under the decree. Horwill, J., had to consider whether such a

compromise was opposed to public policy and whether the conduct of the wife in entering into such a compromise removed the very basis of such

a decree. He held that the compromise was not opposed to public policy and that it was not a bar to the executability of the decree for

maintenance, because the wife had clearly no intention of abandoning her rights under the decree by adopting a fresh relationship with her husband.

The same learned Judge in Mikkilineni Raghavayya Vs. Mikkilineni Rangamma and Another, , had to consider the same question, but under

different circumstances. There, in a suit brought by a wife against her husband for recovery of some property which her husband had gifted to her,

and, in the alternative, for half share of some other property, a compromise was entered into between the husband and Wife, according to the

terms of which the wife got the property claimed in the suit, on condition that she came back and continued to live with her husband. It was further

provided by the terms of the compromise that, if the wife was unable to live with her husband, she was to forfeit her right to the property and to get

maintenance of a certain quantity pf paddy every year. It appeared from the facts of the case that, after the decree, the wife had returned to live

with her husband, but that, later on, she separated from him once again, and thereafter, claimed maintenance. Horwill, J., held on these facts that

the wife was entitled to recover maintenance as provided in the decree, notwithstanding the fact that she had temporarily lived with her husband

during the interval. The facts in both the cases decided by Horwill, J., clearly indicated that the wife had no intention to abandon her rights under

the maintenance decree. Her resuming cohabitation with her husband was governed by an arrangement which was tentative in nature. That is not

the fact in the present case. These two decisions of Horwill, J., have therefore no application.

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 practised 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 spendthrift 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 that

the husband and wife should resume cohabitation only under the 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. The principle of law upheld

in Vasantam Venkayya Vs. Vasantam Raghavamma, , must therefore apply to this case ; and I hold that the very basis of the decree in O.S. No.

137 of 1950 has ceased to exist by reason of the resumption of cohabitation by the husband with his wife. In this view, it is unnecessary to

consider the question arising in the second appeal. The second appeal is therefore allowed and the decrees of the lower Courts are set aside and

O.S. No. 83 of 1953 will stand dismissed. The appellant will get his costs of this appeal from first respondent. No posts in the lower Courts.

Leave to appeal granted.

C.M.P. No. 3528 of 1957. Amendment allowed.