SANGAVVA GULAPPA KHANDEKAR Vs. GULAPPA KARIYEPPA KHANDEKAR

JUDGEMENT

(1.) THIS is a reference by the Sessions Judge of Bijapur in certain maintenance proceedings.

(2.) ON January 15, 1940, the opponent Gulappa was directed to pay maintenance to his wife Sangawa at the rate of Rs. 2 a month. Even at that time he alleged that his wife was living in adultery with one Anya, but the evidence which he produced on the point was then considered insufficient. The opponent did not pay the maintenance ordered, and on January 14, 1941, Sangawa applied to enforce the order under Section 488(5) of the Criminal Procedure Code. In reply to the notice the opponent appeared and contended as before that his wife had been and was living in adultery with the said Anya. After hearing the evidence on the point the Magistrate cancelled the order for maintenance on September 25, 1941. The effect of this was that Sangawa's application to enforce the order was rejected.

(3.) THEN there is Clause (5) which says this: "On proof that any wife in whose favour an order has been made under this section is living in adultery, ...the Magistrate shall cancel the order." It is not said that the Magistrate shall refuse to execute, or refuse to execute further, and Clause (5) we think is not concerned with the question of execution at all. It provides for cancellation of the original order for payment, which is quite a different thing from refusing to execute it. It is by no means clear that the use of the word "cancel" (which occurs in Section 489 also) necessarily implies retrospective effect, and Mr. Hungund who appeared for the opponent did not in fact argue that the order had retrospective effect. "Cancel" may mean "put an end to" or "terminate" rather than "set aside". But this point is immaterial if the execution of the original order is barred under Clauses (3) and (4).