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1968 DIGILAW 355 (ALL)

Phulbasi v. State

1968-09-20

GYANENDRA KUMAR, YASHODA NANDAN

body1968
JUDGMENT Yashoda Nandan, J. - The main question arising for consideration in this reference is as to whether an order passed u/s 488(1), Code of Criminal Procedure is rendered ineffective and inoperative because of a temporary reunion between the parties to the proceedings. The case has been referred to a larger Bench by a learned single Judge of this Court because of the conflict between Pearey Lal v. Smt. Naraini 1935 AWR 11331 decided by Ganga Nath, J. and Nathu Ram v. Smt. Rashmani 1967 AWR 722 decided by Rajeshwari Prasad, J. 2. The relevant facts giving rise to this reference are that the Applicant Smt. Phulbasi who is admittedly the legally wedded wife of the opposite party, Shivnath, made an application in 1952 u/s 488, Code of Criminal Procedure for the grant of maintenance allowance on the ground that her husband neglected and refused to maintain her. Her application was allowed and Shivnath was ordered to pay Rs. 30/- per month to her as maintenance allowance. A revision preferred by Shivnath was dismissed on 9-7-1954. Thereafter Smt. Phulbasi made an application for recovery of arrears of maintenance allowance but some sort of reconciliation took place between the parties, as a result of which the Applicant went back to the house of Shivnath and actually lived with him for about a week. Thereafter, it is alleged, that Shivnath again turned out Smt. Phulbasi. 3. On 23--9--1965, the Applicant filed an application before the learned Sub-Divisional Magistrate, Chandauli, Varanasi, for enforcement of the order u/s 488(1), Code of Criminal Procedure. She prayed for realisation of Rs. 345/- as arrears of maintenance allowance for a period of 11-1/2 months. The claim of the Applicant was resisted by the opposite party, Shivnath. The learned Magistrate took the view that since there had been an earlier compromise between the parties the original order passed u/s 488(1), Code of Criminal Procedure in favour of the Applicant could not be enforced. He further took the view that since the original order granting maintenance allowance to the Applicant had not been filed, it was not possible "to determine the date from which the amount became due, though the realisation proceedings can betaken for an amount of one year only." Accordingly, he rejected the application made by Smt. Phulbasi. 4. He further took the view that since the original order granting maintenance allowance to the Applicant had not been filed, it was not possible "to determine the date from which the amount became due, though the realisation proceedings can betaken for an amount of one year only." Accordingly, he rejected the application made by Smt. Phulbasi. 4. Aggrieved by the order of the Sub-Divisional Magistrate, Smt. Phulbasi went up in revision before the learned Sessions Judge, Varanasi. The learned Sessions Judge, relying on the decision of Pearey Lal (supra) and certain other reported cases, took the view that the earlier compromise between the parties, as a result of which Smt. Phulbasi had resided with her husband for about a week, did not disentitle the Applicant from claiming enforcement of the order passed in her favour u/s 488(1), Code of Criminal Procedure. He also took the view that the application made by the Applicant was maintainable and she could claim arrears of maintenance allowance for a period of one year preceding the date of the application. The learned Sessions Judge made a recommendation to this Court that the order passed by the learned Magistrate be set aside and a warrant may be issued for the recovery of the arrears of the maintenance allowance claimed by the Applicant. 5. When the reference came up for hearing before Seth, J. his attention was invited to the decision of Rajeshwari Prasad, J. in Nathu Ram (supra) in which the view was taken that if after an order u/s 488 Sub-section (1) was passed in favour of a wife against her husband, the parties compromised their differences and the wife lived with her husband for some time, the cause of action to get maintenance u/s 488, Code of Criminal Procedure, would disappear. The learned Judge took the view that if a fresh cause of action arose, it was open to the wife to apply afresh for an order u/s 488 Sub-section (1), Code of Criminal Procedure. Unfortunately the earlier decision of Ganga Nath, J. in Pearey Lal (supra) was not brought to the notice of Rajeshwari Prasad, J., 6. Having heard the Learned Counsel appearing for the parties, we find ourselves in respectful disagreement with the view taken in Nathu Ram's case (supra). 7. Unfortunately the earlier decision of Ganga Nath, J. in Pearey Lal (supra) was not brought to the notice of Rajeshwari Prasad, J., 6. Having heard the Learned Counsel appearing for the parties, we find ourselves in respectful disagreement with the view taken in Nathu Ram's case (supra). 7. An order passed by a Court of competent jurisdiction cannot, in our opinion, cease to be effective and operative on account of any act of the parties I in the absence of a statutory provision to the contrary or a provision to that effect in the order itself. In our judgment, an order u/s 488 Sub-section (1), continues to be effective unless it is cancelled either u/s 488 Sub-section (5) or u/s 489 Sub-section (2), Code of Criminal Procedure. If there is a reconciliation between the parties and the wife starts living with her husband, there is merely a temporary suspension of the order passed u/s 488 Sub-section (1), Code of Criminal Procedure and it is open to the husband to take the plea I that for the period during which his wife resided with him he had sufficient cause within the meaning of Section 488 Sub-section (3) for failure to comply with the order. In our opinion, the law was correctly laid down in Peareylal (supra). The view take in this decision was followed by H.C.P. Tripathi, J. in Rup Ram v. Smt. Nathia 1964 AWR 735, in which it was held that a mere temporary stay of the wife with her husband, though it may have suspended the operation of the order, has not the effect of cancelling it. The decision in Peareylal (supra) was approved and followed in Laxman Gajju Vs. Sitabai Laxman and Another, AIR 1958 Bom 14 , Mukand Singh Vs. Mst. Kartar Kaur, AIR 1958 P&H 422 , Kasinath Panda Vs. Padambati Debi, AIR 1956 Ori 199 and John P.E. Goelho v. Mrs. Blanche Coelho x. There is thus a preponderance of judicial opinion in favour of the view that we are taking. 8. The Calcutta High Court in Parul Bala Debi Vs. Satish Chandra Bhattacharjee, AIR 1923 Cal 456 has also taken the same view. In Kanagammal Vs. Padambati Debi, AIR 1956 Ori 199 and John P.E. Goelho v. Mrs. Blanche Coelho x. There is thus a preponderance of judicial opinion in favour of the view that we are taking. 8. The Calcutta High Court in Parul Bala Debi Vs. Satish Chandra Bhattacharjee, AIR 1923 Cal 456 has also taken the same view. In Kanagammal Vs. Pandara Nadar, AIR 1927 Mad 376 , Curgenven, J. held that the fact that the wife returned to her husband's house and lived with him for some time will not have the effect of cancelling the order, though it may suspend the operation of the order. The decision in Kanagammal (supra) was subsequently over ruled in Munuswami Pillai Vs. Doraikannu Ammal, AIR 1946 Mad 222 . The learned Judges who decided this case relied on an earlier decision of the same Court in Vasantam Venkayya Vs. Vasantam Raghavamma, AIR 1942 Mad 1 in which it was held that a decree obtained by a Hindu wife against her husband for maintenance differs in no important respect from an order for permanent elimony 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 viz. that the decree becomes ineffective and cannot be enforced. Leach, C.J. and Mockett, J. held that if the wife is compelled to leave her husband after resuming cohabitation she should apply for a fresh decree. The decision in Vasantam Venkayya (supra) was in an appeal arising out of a civil suit. A similar view was taken in Kuppuswami Padayachi Vs. Jagadambal, AIR 1947 Mad 423 and S. Natesa Pillai Vs. Jayammal, AIR 1960 Mad 515 . The learned Judges of the Madras High Court placed reliance on certain English decisions. The English authorities relied upon by the Madras High Court proceeded upon the wordings of Section 4 of the Matrimonial Causes Act, 1878, which runs as follows: If a husband shall be convicted summarily or otherwise of an aggravated assault within the meaning of the statute 24 and 25, Vict. c. 100. The English authorities relied upon by the Madras High Court proceeded upon the wordings of Section 4 of the Matrimonial Causes Act, 1878, which runs as follows: If a husband shall be convicted summarily or otherwise of an aggravated assault within the meaning of the statute 24 and 25, Vict. c. 100. Section 43, upon his wife, the Court of Magistrate before whom he shall be so convicted may, if statisfied that the future safety of the wife is in peril, order that the wife shall be no longer bound to cohabit with her husband and such order shall have the force and effect in all respects of a decree of judicial separation on the ground of cruelty; and such order may further provide" (inter alia) "that the husband shall pay to his wife such weekly sum as the Court or Magistrate may consider in accordance with his means." 9. In the English authorities, on which the Madras High Court placed reliance, when it was shown that the husband and wife hid resumed cohabitation for a time, the view was taken that the order which had the legal effect of a decree of judicial separation came to an end by the same circumstances which would bring to an end a decree of judicial separation itself. The reasoning of the English decisions is that the order for maintenance was merely an ancillary order to the original order made in the case, which allowed the wife not to co-habit with her husband, if she did not want to. Such an order was given the full force and effect of a decree for judicial separation, though it was not actually a decree for judicial separation. Under the English law judicial separation would come to an end with the resumption of co habitation between the husband and the wife. It was for this reason that the view was taken that an order which had the legal effect of as decree of judicial separation must also come to an end with the husband and wife resuming co habitation. If the order came to an end, then the order for maintenance, which was merely an ancillary order made at the time when the original order allowing the wife not to cohabit with her husband was passed, must also come to an end. If the order came to an end, then the order for maintenance, which was merely an ancillary order made at the time when the original order allowing the wife not to cohabit with her husband was passed, must also come to an end. That is not the effect of an order u/s 488, Code of Criminal Procedure which would be no answer to a suit for restitution as a decree for judicial separation would be. In our opinion, the English authorities which proceeded upon the words of an English statute have no application to a case u/s 488, Code of Criminal Procedure. We are of the view that the learned Magistrate acted illegally in holding that because of the earlier compromise between Smt. Phulbasi and Shivnath, he application giving rise to the present reference was not maintainable. 10. In our opinion, the learned Magistrate was also incorrect in holding that it was not possible "to determine the date from which the amount became due, though the realisation proceeding can be taken for an amount of one year only." It does not appear to have been disputed that an order u/s 488 Sub-section (1), Code of Criminal Procedure had been passed granting maintenance allowance to the Applicant at the rate of Rs. 30/- per month from her husband Shivnath. It also does not appear to have been disputed that within one year from the date of the order the Applicant had applied for its enforcement, though subsequently a compromise was arrived at between the husband and the wife. The second proviso to Section 488 Sub-section (2) gives a right to the abandoned wife to recover arrears falling due for a period of one year next before the date of the application. The effect of the proviso is that the wife cannot recover arrears for a period beyond one year next before the date of the application. In the -application giving rise to this reference, Smt. Phulbasi had applied for recovery of arrears of maintenance allowance for a period of 11--1/2 months preceding the date of the application. She was clearly entitled to do so. 11. In the result, we accept this reference, set aside the order of the learned Magistrate and direct him to decide the application made by Smt. Phulbasi according to law.