Singaravelu alias Singaram Chettiar vs Pattammal

P.V. Rajamannar, C.J.—The respondent is the appellant''s wife. In C.S. No. 77 of 1944 on the Original Side of this Court, she obtained a

decree against the appellant which directed him to pay her a sum of Rs. 50 per month as maintenance on or before the 10th of each month. She

filed E.P. No. 55 of 1948, to recover the arrears of maintenance due under the decree from January 1946 to February 1948. The appellant raised

an objection that subsequent to the passing of the decree, the respondent was leading an unchaste life and she was therefore not entitled to enforce

the decree as she had forfeited her rights thereunder by her unchastity. The First Assistant Registrar before whom the application first came up for

hearing overruled this objection of the appellant on the ground that the decree conferred on the respondent an unconditional and absolute right for

maintenance. There was an appeal and the learned Judge sitting in Chambers confirmed the order of the First Assistant Registrar. He held that the

executing Court could not go behind the decree and the decree, as it stood, was unambiguous and did not contain any condition to the effect that

the respondent would lose her right to execute the decree if she became unchaste subsequent thereto. The learned Judge followed the ruling of the

Bombay High Court in Maharana Shri Ranmalsangji v. Bai Shri Kundankuwar ILR (1902) Bom. 707 and dismissed the appeal. Against the

decision of the learned Judge, the husband has filed this appeal.

In our opinion, the principle underlying the decision in Maharana Shri Ranmalsangji v. Bai Shri Kundan Kuwar ILR (1902) Bom. 707 directly

applies to this case. There the respondent had obtained a decree for maintenance against her husband, the appellant, on 14th June, 1898. On 22nd

February, 1901, she applied for execution of the decree. The appellant objected and contended that she had lost her right to maintenance

inasmuch as she had left his house without any cause and without his consent, sometime in December, 1900. For the husband it was argued that by

her conduct the wife had forfeited her right to maintenance and therefore the decree became inexecutable. The learned Judges in overruling this

objection of the husband observed thus:

This might be a good answer to a wife setting up an ordinary claim to maintenance under Hindu Law. But here the claim is under the special

provisions of a decree expressly dealing with the circumstances of this particular case. And that decree, passed in relation to those circumstances,

contained no provision whatever that the rights thereby conferred on the respondent should be dependent upon her place of residence or upon any

other matter whatsoever. It conferred in terms an unconditional and absolute right to the maintenance specified therein.... It is binding in execution

on the parties thereto, and neither of them could go behind it or add to it a condition which it does not contain. A decree for maintenance might be

so framed as to admit of modification of its terms with reference to post-decretal changes in the circumstances or in the relations of the parties. No

authority has, however, been cited to show that such modifications could be made on application in execution when the decree contains no

provision in that behalf.

We respectfully agree with these observations.

It was contended by Mr. M.S. Venkatarama Aiyar for the appellant that under Hindu Law a wife is not entitled to maintenance even when such

maintenance is fixed by a decree if she is unchaste. That may be so under Hindu Law. But what the respondent in this case is seeking to enforce is

not her right under the Hindu Law as such, but her right under a decree. If her rights and obligations under Hindu Law are not mixed up with her

rights and the appellant''s obligations under the decree, the position is quite clear. The decree, as it stands, is not conditional in any manner. The

husband''s remedy can only be by way of a separate suit and not by way of an objection to the execution of the decree.

The ruling of a Division Bench in Vasantam Venkayya Vs. Vasantam Raghavamma, was cited to us and the following passage in the judgment of

the learned Chief Justice was relied on by the Counsel for the appellant:

The present case is not Concerned with a matter of procedure or the adjustment or satisfaction of a decree. The question is whether the Court is to

disregard a sound principle of law and enforce a decree the basis of which has by the action of the parties themselves been demolished. By

returning to her husband the respondent became disentitled to claim maintenance against him. The decree which she had obtained must, it seems to

me, be regarded in the circumstances as having become ineffective. By going back to her husband the wife restores the position to what it was

when they were married.

These remarks were made in a case in which a Hindu wife who had obtained a decree against her husband thereafter cohabited with him for

several years during which period she even bore a son. She again separated from her husband and then filed an application to execute the decree

which she had obtained before she had rejoined her husband. It was held that the execution of the decree could not be ordered. 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 she herself came and lived with him and he

maintained her, there would be pro tanto a satisfaction of the decree. Apart from that, in that case there was no dispute as to facts and there was

nothing which made it incumbent on the executing Court to make an enquiry into new allegations made in the course of execution proceedings. As

Mockett, J., pointed out:

It was within the knowledge of the executing Court that the whole basis of this decree had disappeared by the act of parties.

The learned Judge gives as an instance a case in which a Court would refuse to execute a decree if from its own records it came to its knowledge

that the decree sought to be executed had been paid. The circumstances of that case are so essentially different from those in the present case that

no assistance can be derived from it.

The learned Counsel for the appellant was unable to cite any authority for the position that an executing Court can enquire into an objection

which really attacks the validity of the decree though at a period subsequent to the passing of the decree. As already observed, the appellant is not

without his remedy, but that remedy is certainly not in execution.

The appeal is therefore dismissed with costs. Advocate''s fee Rs. 100.