BHAKTA CHARAN SAMANTARAY Vs. BINAPANI SAMANTARAY

JUDGEMENT

(1.) Though this matter was listed for admission, I feel no useful purpose would be served by issuing notice to opposite party, because of the order I propose to pass. By the impugned order dated 27.8.1994, learned J.M.F.C. Bhubaneswar, has directed issuance of distress warrant against present petitioner, for realisation of an amount which according to learned Magistrate, was payable in terms of order dated 19.1.1994. The said order was passed on a petition for compromise filed by the present petitioner and opposite party in a proceeding under Section 125 of the Code of Criminal Procedure, 1973 (in short the Code).

(2.) Stand of the petitioner is that order passed on a compromise petition is not one in respect of which an order can be passed in terms of subsection (3) of Section 125 of the Code. It is further submitted that after the order was passed, petitioner and opposite party resumed their conjugal life. In such a case, only course open to the present opposite party, if she had any basis for making the claim, was to file a separate application in terms of section 125 of the Code and not to seek issuance of a warrant for realising the amount due.

(3.) Two views have been taken by different Courts on the question whether on wife rejoining husband after an order of maintenance, effects its cancellation. One view is mere temporary stay of the wife with her husband, though it may suspend the operation of the order does not have the effect of canceling it. (See Parul Bala Debi v. Satish Chandra Bhattacharjee, (Mt: Zauhra Bi v. Muhammad Ysaf). It is a general principle of law that an order, whose term is not fixed and whose currency is not made expressly dependant upon the continued existence of some circumstances or set of circumstances, remains in force until it is cancelled and prima facie this rule applies to maintenance order passed under Section 125 of the Code. The husband may on proof of circumstances specified in sections 125 (4) or 125 (5) or section 127 obtain cancellation or modification of the original order as the case may be, and until he does that, the original order must be deemed to be still in force. The mere fact that a wife has returned to live with her husband will not bring the order to an end automatically, and on her separating from him again she can enforce it. Reunion does not automatically vacate the previous order (See Mt. Fazal Din v. Mt. Fatima. The other view is, where a woman to whom maintenance has been ordered under the section subsequently voluntarily resides with her husband, original order becomes ineffectual, and when the husband again refuses to maintain her, she should institute formal proceedings under Section 125 of the Code again. Since a maintenance order in favour of the wife is necessitated by neglect or refusal by the husband to maintain his wife, a bona fide reunion must be interpreted as removing the basis on which the order rests and as, therefore, vacating the order (See S. Natesa Pillai v. Jayammal.