MATHEW MARIAMMA ALIAS THANKAMMA Vs. CHERIYAN MATHEW

JUDGEMENT

(1.) The revision petitioner is the wife of the respondent. She was man-handled and driven out of the house with her child and was neglected and refused to be maintained. On 4-8-1961 she secured an order of maintenance under S.488 of the Criminal Procedure Code whereby the respondent was directed to pay a monthly allowance at the rate of Rs. 15/- for her and Rs. 10/- for the child. On 10-9-1964 she filed an application for realising the arrears that had fallen due from 4-9-1963 to 4-9-1964. That application was resisted by the husband mainly on the ground that as the differences between them as also the litigations were settled due to the intervention of mediators and she had gone over to his house and was living there till 17-3-1964 the order of maintenance has become ineffectual and unenforceable. He had a further case that she had to leave the house since he found her in a compromising position with a blacksmith Padmanabhan. The learned Magistrate while not accepting the charge of unchastity dismissed the application for enforcement of the order on behalf of the wife on the ground that the re-union and cohabitation between the parties have effected a cancellation of the order for maintenance. The claim made on behalf of the child was accepted and she was allowed to enforce the order to that extent.

(2.) Though the learned counsel for the revision petitioner attempted to challenge the correctness of the finding that the wife was residing with the husband he was not able to bring out any permissible ground for interfering with that finding of fact in revision. However I am of the view that he is entitled to succeed on the question of law raised.

(3.) The question for consideration is whether the resumption of cohabitation after an order under S.488 had been passed will have the effect of cancelling the order or whether the order will only remain suspended for the duration of the reconciliation. There is a difference of judicial opinion on this matter. The Madras High Court has on more than one occasion taken the former view. In Venkayya v. Raghavamma, AIR 1942 Mad. 1 , a Division Bench of the Madras High Court gave its opinion that: