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1964 DIGILAW 331 (ALL)

Rup Ram v. Srimati Nathia

1964-10-07

H.C.P.TRIPATHI

body1964
JUDGMENT H.C.P. Tripathi, J. - This revision is directed against an order of the learned Sessions Judge of Meerut confirming the order dated 20.6.1963 passed by Sri Ved Prakash, S.D.M., Mawana in a proceeding under Section 488, Cr.P.C. 2. Opposite Party Smt. Nathia is the legally wedded wife of the applicant and she was allowed a maintenance allowance of Rs. 30/- per month under an order of this Court. Sometime after that order of this Court. Sometime after that order she went back to her husband and lived with him for a period of about 18 months out of her own accord. Later on it appears she was ill-treated again and then she applied before the Magistrate claiming recovery of Rs. 90/- on account of arrears of her maintenance allowance. 3. An objection was filed by the applicant that as subsequent to the order of maintenance in her favour, the opposite party resumed co-habitation with him, the aforesaid order became unenforceable as it exhausted itself. The learned Magistrate relying on a Single Judge decision of this Court Pearey Lal v. Mt. Naraini A.I.R. 1935 Alld. 997 repelling the objection and the learned Sessions Judge in revision has concurrent with him. 4. Learned counsel for the applicant has contended that the decision relied upon by the lower courts does not lay down correct law. He has invited my attention to a Division Bench case of the Madras High Court reported in A.I.R. 1942 Madras, page 1, which has been followed by a learned Single Judge of the Court in the case of S. Natesa Pillai v. Jayammal A.I.R. 1960 Mad. 515. 5. In the Madras case referred to above, following the English principles on the subject, a Division Bench consisting of Chief Justice Leach and Mockett, J. 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 decree becomes ineffective and cannot be enforced. If she is compelled to leave him after resuming cohabitation she should apply for a fresh decree. This decision which was followed in later cases by that court undoubtedly supports the contention of the learned counsel for the applicant. 6. If she is compelled to leave him after resuming cohabitation she should apply for a fresh decree. This decision which was followed in later cases by that court undoubtedly supports the contention of the learned counsel for the applicant. 6. On the other hand, in the case of Pearey Lal v. Mt. Naraini A.I.R. 1935 Alld. 997 a learned single Judge of this Court was pleased to hold that "the mere fact that a woman goes to live with her husband for some time, is not sufficient to make an order of maintenance obtained by her ineffectual though it may have the effect of suspending the order for the period the woman lives with her husband." This view of law is based on a Division Bench decision of the Calcutta High Court in the case of Parul Bala Debi v. Satish Chandra Bhattacharjee A.I.R. 1923 Cal. 456 wherein Sanderson, Chief Justice and Panton, J. took the view that a mere temporary stay of the wife with husband, though it may have suspended the operation of the order, has not the effect of cancelling it in the way in which it could be cancelled under Section 488(5) of the Code. 7. It is, therefore, obvious that the view of this Court is the same as that of the Calcutta High Court and there is no reason why it should not be given preference to the view adopted by the Madras High Court in the case referred to above. 8. In the result, I hold that the decision of the Magistrate on the question raised before him is correct and does not call for any interference in revision. 9. This revision is dismissed.