Vasantam Venkayya vs Vasantam Raghavamma

Alfred Henry Lionel Leach, C.J.—This appeal raises the question whether a wife who has obtained a decree for maintenance can enforce it

after having cohabited with her husband. The appellant is the husband of the respondent. In 1930 the respondent instituted a suit in the Court of the

District Munsif of Bapatla for a decree for maintenance. She alleged that her husband had so illtreated her that she was unable to live with him. On

the 23rd June, 1930, by consent a decree was passed in her favour for Rs. 120 per annum. Shortly after this decree had been passed the parties

decided that they could live together happily and the wife returned to the husband. They lived together for several years. According to the appellant

the second separation did not take place until the 24th August, 1937, but according to the respondent, it took place on the 15th July, 1935.

Admittedly they lived together for over five years and during this period the respondent bore a son to her husband. On the 2nd May, 1939, the

respondent filed an application for execution of the decree which she had obtained on the 23rd June, 1930. She asked for the payment of Rs.

663-12-0, being maintenance calculated at the decretal rate from the 15th January, 1935. The appellant opposed the application. He contended

that by reason of the fact that his wife'' had returned to him and had lived with him for five years thereafter the decree had become a nullity. The

District Munsif overruled the objection and his decision was concurred in by the Subordinate Judge of Tenali on appeal. This appeal is Vet from

the order of the Subordinate Judge. The appellant main- Ratains the contention which he advanced below. For the respondent it is said that the

decree not having been set aside, adjusted or satisfied, she is at liberty to execute it. Her learned advocate went so far at one stage as to say that

she could have executed the decree against her husband during the five years she was living with him but later asked the Court to regard the decree

as being suspended during the period they were living together.

In Bateman v. Countess of Ross (1813) 1 Dow. 235 : 3 E.R. 684 Lord Eldon held the general doctrine to be clear, that a reconciliation after a

separation entirely did away with the effects of the separation. This doctrine was applied by a Division Bench composed of Hawkins and A. L.

Smith, JJ., in Haddon v. Haddon (1887) 18 Q.B.D. 778 and by Jeune P. and Gorell Barnes, J., in Williams v. Williams (1904) Prob. 145. In

Haddon v. Haddon (1887) 18 Q.B.D. 778 the Justices of the County of Leicester made an order u/s 4 of the Matrimonial Causes Act, 1878, that

the wife should be no longer bound to cohabit with her husband and that he should pay to her a weekly sum for her maintenance. After the order

had been passed the wife resumed cohabitation with the husband but the reunion did not prove to be permanent. The question was whether she

was entitled to enforce the order which she had obtained against him before she resumed cohabitation. It was held that the order was annulled by

reason of the subsequent resumption of cohabitation and therefore the wife could not enforce payment of the weekly sums. Hawkins, J., said:

It is impossible to suppose that the Legislature, in giving Magistrates power to release a wife from the obligation of cohabitation by reason of

imminent danger from her husband''s violence, intended to confer upon them jurisdiction to make an order which should give a wife liberty to live

apart from, and resume cohabitation with, her husband when and as of ten as she should think fit, and compel her husband to maintain her at all

times when it pleased her to separate from him, even though her safety no longer required a separation.

If she was compelled to leave him after resuming cohabitation she should apply for a new order. In discussing the judgment of Lord Eldon in

Bateman v. Countess of Ross (1813) 1 Dow. 235 : 3 E.R. 684 Hawkins, J., pointed out that the general principle stated by Lord Eldon was

expressly recognised by the Court of Appeal in Nicol v. Nicol (1886) 31 Ch.D. 524 and that in Linton v. Linton (1885) 15 Q.B.D. 239 Lord

Esher in speaking of weekly alimony ordered to be paid to a wife by the Divorce Court had said that they were not payments of a life annuity; they

might be stopped at any moment if the husband and wife returned to cohabitation.

In Williams v. Williams (1904) Prob. 145 it was held that the effect of the condonation of an offence which is specified as a ground of complaint

within the terms of the Summary Jurisdiction (Married Women) Act, 1895, does not depend on the wording of any section of the Act, but on the

common law. In that case the Court had no hesitation in holding that the resumption of cohabitation put an end to the cause of complaint, and

therefore the power of the Justices to make an order passed away altogether,

The decision in Haddon v. Haddon (1887) 18 Q.B.D. 778 was applied by Beasley, J., in Ellen Ma Noo v. William Po Thit I.L.R.(1924) Rang.

In that case the petitioner obtained a decree for judicial separation from her husband and embodied in it was an order for the payment to her

of permanent alimony. The decree was passed in 1903 and the wife lived apart from her husband until 1st, February, 1907. On that date she

returned to him and they lived together until the 25th October, 1921, a period of over 14 years. The wife then left the husband and applied for

execution of the decree for alimony which she had obtained in 1903. Relyingon Haddon v. Haddon (1887) 18 Q.B.D. 778 Beasley, J., held that

she was not entitled to execute the decree. If she desired to obtain an order for maintenance or alimony she was bound to institute fresh

proceedings, founded on her allegations of further cruelty. The same principle was applied in U Po Shein v. Ma Sein Mya I.L.R.(1930) Rang. 460

where it was held that a bona fide reunion must be interpreted as removing the basis on which an order for maintenance rests and therefore as

vacating the order. In Syed Saib v. Meeram Bee (1909) 20 M.L.J. 12 a Division Bench of this Court held that a Magistrate was bound to refuse

to enforce an order u/s 488 of the Code of Criminal Procedure on the ground that the relationship of husband and wife had ceased to exist since

the date of the order. The Allahabad High Court has given similar decisions. (See Phul Kali v. Harnam (1888) 8 A.W.N. 210 and Shah Abu Ilyas

v. Ulfat Bibi I.L.R.(1896) All. 50.

The learned advocate for the respondent has relied on Kanagammal v. Pandara Nadar (1926) 52 M.L.J. 176 : ILR Mad. 663 Pearey Lal v.

Naraini I.L.R.(1935) All. 379 Kallu Mal v. Barfo ILR (1938) All. 535 and Meharana Shri Ranmalsangji v. Bai Shri Kundankuwar I.L.R.(1902)

26 Bom. 707 and this is a convenient stage to examine these decisions. In Kanagammal v. Pandara Nadar (1926) 52 M.L.J. 176 : ILR Mad. 663

Curgenven, J., held that when a wife has obtained an order for maintenance u/s 488 of the Code of Criminal Procedure and has subsequently

returned to her husband the order is not thereby put an end to but its operation is merely suspended during the period of co-habitation. This

decision runs directly counter to the principle embodied in the judgment of Haddon v. Haddon I.L.R.(1935) All. 379. I can see no difference in

principle between an order passed u/s 488 of the Indian Code of Criminal Procedure and an order under the Matrimonial Causes Act of 1878 or

the English Summary Jurisdiction (Married Women) Act, 1895. If the principle stated by Lord Eldon is to be applied there can be no question of

the suspension of the order. The order goes entirely.

In Meharana Shri Ranmalsangji v. Bai Shri Kundankuwar I.L.R.(1902) 26 Bom. 707 a wife had obtained a decree for maintenance against her

husband and when she applied to execute it he objected to the execution on the ground that she had lost her right to maintenance inasmuch as she

left his house without any cause and without his consent. It was held that no modification of the decree could be allowed in execution on grounds

not recognised in the decree itself as giving a right to such modification. This decision has really no bearing here. Pearey LaL v. Naraini I.L.R.

(1935) All. 379 was decided by a single Judge of the Allahabad High Court who concurred in the opinion expressed by Curgenven, J., in

Kanagammal v. Pandara Nadar (1926) 52 M.L.J. 176 : ILR Mad. 663. In Kallu Mal v. Barfo ILR (1938) All. 535 the question was whether

reduction of a decree for maintenance could be claimed in execution proceedings but it was held that it could not. That question is also far from the

present one.

The English authorities are in favour of the appeal and most of the Indian authorities. The learned advocate for the respondent has, however,

suggested that the English decisions have no application because the provisions of the Indian Divorce Act cannot be applied to them and a Hindu

wife is not entitled to sue for a judicial separation. This is an argument which I am not prepared to accept. It is true that the Indian Divorce Act

does not apply to the parties and that a Hindu wife may not sue for a decree for judicial separation, but she can sue for a decree requiring her

husband to maintain her if she is compelled to live apart. 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. There being no difference in principle I can

see no reason why the English authorities should not be applied.

The respondent mainly relies on the provisions of the Code of Civil Procedure. She points to the fact that under that Code a decree remains in

force unless it has been satisfied or adjusted and the satisfaction or the adjustment has been recorded. 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. It seems to me that

the rule stated in Haddon v. Haddon (1887) 18 Q.B.D. 778 must be given effect to here if justice is to be done.

For these reasons I would allow the appeal and dismiss the application for execution. This will not prevent the respondent from obtaining a

fresh decree if she left her husband on the second occasion as the result of his ill-treatment of her, but this is not a question which can be

considered in this case. There will be no order as to costs here or below.

Mockett, J.

I agree with the judgment of my Lord. I prefer the judgment of Beasley, J., in Ellen Ma Noo v. William Po Thit I.L.R.(1924) Rang. 163 to the

judgment of Curgenven, J., in Kanagammal v. Panadara Nadar (1925) 62 M.L.J. 176 : ILR Mad. 663 and to that of Ganga Nath, J., in Pearey

Lal v. Naraini I.L.R.(1935) All. 379. I consider that the judgment of Beasley, J., should be followed. As the learned Judge has pointed out, and as

my Lord has pointed out, the decree in a case as this in the words of A.L. Smith, J., comes to an end from the resumption of cohabitation. I have

asked the learned Counsel for the respondent whether it is possible for him to distinguish a decree passed in a suit for maintenance from a decree

passed under the Indian Divorce Act or an order passed u/s 488 of the Code of Criminal Procedure. He has said that it is impossible to do so so

far as the basis is concerned. That must be so because the basis of all these orders is that if the husband neglects to maintain his wife, she by reason

of his unlawful neglect is entitled to maintenance. That is important in this case, for this reason. The parties, as my Lord has indicated, went before

the Court and admitted that shortly after the consent decree, they had lived together as husband and wife there being a difference as to whether the

period was five or seven years. That fact was therefore within the knowledge of the Court and therefore no investigation by the Court was required

to ascertain it. In a decision of Burn, J., and myself in which Burn, J., gave the judgment of the Court A. A. O. No. 446 of 1938, a question arose

which is of some assistance to us here. It is a well-ascertained principle, and supported by innumerable decisions, that an uncertified adjustment

cannot be recognized by an executing Court. 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 Order 21, Rule 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 act 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 emphasise 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 Order 21, Rule 2 of the Code. I further wish to guard myself against deciding anything with regard to a case in which the

Court is invited to make an inquiry in the circumstances of the case. When such a case arises it can be decided. As already indicated I agree with

my Lord that this appeal should be allowed.