PATEL MULCHAND JOITARAM Vs. BAI AMTHI

JUDGEMENT

(1.) A short yet an important point that arises to be considered in this revision application is as to whether in view of the reunion between the husband and wife established in the case the order of maintenance stands exhausted itself and that the only remedy will be by obtaining a fresh order on a subsequent cause of action or as to whether the order of maintenance passed under sec 488(1) of the Criminal Procedure Code stands until it is set aside under the provisions of the Code.

(2.) The facts giving rise to this application in revision are that the opponent Bai Amthi wife of Patel Mulchand Joitaram of Visnagar obtained an order of maintenance under sec. 488 of the Criminal Procedure Code in the Court of the Judicial Magistrate First Class at Visnagar against her husband-the petitioner Patel Mulchand Joitaram. Some time after that order was Passed it appears that the panchas of their caste had collected at Unjha and the panchas had directed the petitioner-husband to live separate from his father and to keep his wife and his children with him. His wife agreed to the same. A separate house was hired and then both of them began to live together in the same house from June 1964 to 20 The parties began to live separate since 2Q-10-1965. That led Bai Amthi the opponent to file an application for recovering the arrears of maintenance amounting to Rs. 235-66 p. for a period from 22 to 3-5-66. It appears that she had received maintenance allowance for a period up to 2t-1-66 after she had separated from her husband. In response to the notice issued to the petitioner in that proceeding he resisted the claim inter alia contending that in view of their having lived together as husband and wife the order of maintenance passed under sec. 408 of the Criminal Procedure Code would automatically come to an end and was therefore ineffective and unenforceable against him. He further alleged that he was abducted by some Goondas from Mehsana and after a period of 1 months or 2 months he was left at Godhra Station by those persons. During the period of his absence she was said to be living in adultery with his wife's sisters husband Naranbhai and that therefore she was not entitled to claim any maintenance against him. The learned Magistrate raised the points for determination and in his opinion the order of maintenance passed on 21-4-64 had not become ineffective and it stood until and unless it was set aside. He also found that she was not living in adultery and that she was entitled to recover Rs. 236 66 p. due as arrears of maintenance from her husband. In the result he passed an order directing the application to proceed further in accordance with law. Feeling dissatisfied with that order passed on 16th March 1967 by Mr. M. M. Modha Judicial Magistrate First Class Visnagar the original opponent has filed this application in revision before this Court.

(3.) It is common ground that Bai Amthi had obtained an order of maintenance on 21-4-64 against her husband under sec. 488 of the Criminal Procedure Code. Some time after that order was passed both of them admittedly lived together in the same house as husband and wife. The order passed on 21-4-64 was not sought to be set aside on any ground and since they again fell out and Bai Amthi began to live separate from her husband with effect from 20-10-1965 she claimed to recover the arrears of maintenance for a period from 22-1-66 to 3-5-66. The contention made out by Mr. Majmudar the learned advocate for the petitioner is that having regard to the fact that both of them began to live together as husband and wife they having been re-united after the order was passed the basis of neglect or refusal to maintain her as contemplated under sec. 488 of the Criminal Procedure Code no longer remained and the order consequently came to an end. Consequently she was not entitled to claim any maintenance under the old order passed by the learned Magistrate for the subsequent period during which she lived separate from her husband His contention further is that the order got exhausted itself and that for getting maintenance allowance on a subsequent separation the new cause of action had arisen and that she can only claim maintenance provided a fresh order on that new cause of action is passed by the Magistrate under sec. 488 of the Criminal Procedure Code. In support of that proposition he relied upon a decision of this Court in Criminal Revision Application No. 509 of 1965 the judgment whereof is dated 4 delivered by our learned brother Raju J. He also relied upon various decisions of the Madras High Court the last being one in the case of S. Natesa Pillai v. Jayammal A.I.R. 1960 Madras 515 and one other case of U Po Shein v. Mo Sein Nya A.I.R. 1931 Rangoon 89. The decision of this Court referred to above has its basis on the Madras decision referred to above which in turn has its basis on the earlier decision of the Madras High Court following an English decision in the case of Haddon v. Haddon (1887) 18 Q.B.D). 778. These decisions in substance lay down that if the wife comes and lives with the husband even for some days the wife cannot be allowed to rely on the original order of maintenance and execute the same against the husband. Under sec. 488 Criminal Procedure Code living together puts an end to the order of maintenance. If the wife separates again from the husband then she must file another petition on a fresh cause of action and obtain an order if she satisfies the Court that there was sufficient reason to leave her husband and that he neglected to maintain her. On the other hand it was urged that once the order is passed by a competent Court under sec. 488 of the Criminal Procedure Code the subsequent reunion or cohabitation between the husband and wife does not automatically put an end to the order. The order stands unless it is set aside or cancelled by a competent Court under the provisions of the Criminal Procedure Code. A mere cohabitation or reunion does not ipso facto put an end to the order passed by the Court. That was the view taken by this High Court in Criminal Revision Application No. 405 of 1960 the judgment whereof came to be delivered by our learned brother Bhagwati J. on 2nd March 1961 following a decision in the case of Laxman Gaju v. Sitabai Laxman A.I.R. 1958 Bombay 14. It appears that this earlier decision of this High Court was not cited before our learned brother Raju J. in the case referred to here above. The same view has been taken by the various High Courts in different case which we shall refer to hereafter.