J NAGESWARAMMA Vs. J SIVARAO

JUDGEMENT

(1.) The petitioner who is the wife of respondent filed suit O.S. 143 of 1969 on the file of Principal District Munsif Court, Machilipatnam for maintenance. In that a compromise decree was passed according to which, the respondent has to pay six bags of paddy to the petitioner every year towards maintenance. The petitioner-decree-holder filed E.P. No. 219 of 1984 for realisation of the arrears of maintenance due to her by arrest of the judgment-debtor. The respondent who is the judgment-debtor raised the following objections : (1) that after the decree was passed the petitioner married one Katta Gujju during the summer of 1970 and eversince she is living is adultery with him and therefore she is not entitled to claim maintenance ; (2) the cost of the paddy bags is not properly calculated ; (3) that he has no means to pay the amount and therefore he cannot be arrested. The learned District Munsif before whom the execution petition is filed enquired into the matter. On behalf of the petitioner one witness was examined and on behalf of respondent four witnesses were examined. Basing on their evidence the learned District Munsif accepted the respondent's case that the petitioner is living with the said Gujju and is leading adulterous life and therefore she is not entitled for maintenance and accordingly dismissed the execution petition. As against that the present revision is filed.

(2.) The learned counsel for the petitioner contended that as long as the decree for maintenance is not set aside, the executing Court cannot go behind the decree and refuse to execute the decree on the allegation that the wife is living in adultery. When it is the contention of the husband that the petitioner is living in adultery, he can file a petition for divorce and obtain divorce from the Court or file a suit for cancellation of maintenance decree. But till the decree is set aside, the respondent is bound to pay the maintenance. On the other hand, learned counsel for the respondent has contended that the wife forfeits to claim maintenance if she is unchaste. This contention is based upon Section 18 (3) of The Hindu Adoptions and Maintenance Act, 1956 which reads as follows :

(3.) This question has to be considered from another angle also i.e., whether the executing Court can refuse to execute the decree. In Sundar Dass vs. Ram Prakash the Supreme Court has pointed out that the "executing Court cannot go behind the decree nor can it question its legality or correctness. But there is one exception to this general rule and that is that where the decree sought to be executed is a nullity for lack of inherent jurisdiction in the Court passing it, its invalidity can be set up in an execution proceeding. The executing Court can therefore entertain an objection that the decree is a nullity and can refuse to execute the decree. By doing so, the executing Court would not incur the reproach that it is going behind the decree, because the decree being null and void, there would really be no decree at all". In the instant case it is not the case of the respondent that the Court which passed the decree has no jurisdiction. So the decree is not null and void. Therefore, the executing Court cannot go behind the decree. If the respondent contends that the petitioner is living in adultery subsequent to the passing of the decree, the proper couise for him is to file a separate suit for cancellation of the maintenance decree and until the decree is set aside it has to be executed by the executing Court.