BHUPINDER SINGH Vs. DALJIT KAUR

JUDGEMENT

(1.) A short narrative of the facts is necessary to explore and explode the submission that a substantial question of law arises, which merits grant of leave under Art. 136 of the Constitution. The respondent is the wife of the petitioner. She moved the Magistrate, having jurisdiction over the subject-matter, for grant of maintenance under S, 125 of the Criminal Procedure Code. The Court awarded maintenance in a sum of Rs. 250/- per mensem but the order was made ex parte since the petitioner did not appear in court. The motion for setting aside the ex parte order was dismissed whereupon a criminal revision was filed by the husband before the High Court. During the pendency of the said petition a compromise was entered into between the parties as a result of which the wife resumed cohabitation with the husband. This resumption of conjugal life was followed by an application by the wife (respondent) praying that her application for maintenance be dismissed and the execution proceedings for recovery of arrears of maintenance be withdrawn. Apparently, on this basis the trial court did not proceed to recover arrears of maintence. But as the record now stands, the order for maintenance remains. That has not been set aside and must be treated as subsisting. The High Court apparently dismissed the revision petition on the score that the parties had compromised the dispute.

(2.) Later developments were not as smooth as expected. The wife was betrayed, because her allegation is that her husband is keeping a mistress making it impossible for her to live in the conjugal home. Naturally, she proceeded to enforce the order for maintenance. This was resisted by the petitioner (husband) on the ground that resumption of cohabitation, after the original order for maintenance, revoked the said order. This plea having been rejected right through, the petitioner has come up to this Court seeking leave to appeal. The short question of law pressed before us is that the order for maintenance under S. 125 of the Code is superseded by the subsequent living of the wife with the husband and is unavailable for enforcement.

(3.) Counsel has relied on a ruling of the Madras High Court in AIR 1960 Mad515.