PROF I D SINGH Vs. PRABHA SINGH

JUDGEMENT

(1.) MRS. Prabha Singh wife of I. D. Singh petitioner before me and her minor children were granted maintenance allowance against the petitioner under Section 488 of the Criminal Procedure Code, to the extent of Rupees 40 per mensem. On 17th June, 1963, Mrs. Singh applied under Section 488/490 of the Code alleging that the respondent had not paid the maintenance allowance to her regularly and that she was entitled to the execution of the full amount for the period from 1st January, 1961 to 31st May, 1962, and from 1st June, 1962 to 31st May, 1963. The petitioner resisted this application and averred that a compromise had been effected between the parties on 30th December, 1960, in the Court of Shri D. P. Gupta, Magistrate 1st Class, Nawanshehar, according to which Mrs. Singh had agreed not to realise any maintenance allowance after 30th December, 1960. That application was dismissed by the Magistrate holding that Mrs. Singh had forfeited her right or maintenance. A revision was filed by Mrs. Singh against that order and the learned Additional Sessions Judge accepted the same and sent the same to the High Court with the recommendation that the order of the Magistrate was wrong and that Mrs. Singh was still entitled to get the allowance. That recommendation was accepted by this Court on 26th October, 1963, and the case was sent back to the trial Magistrate for proceeding according to law. Some evidence was led by the parties to find out if there was any compromise arrived at between them. The trial Magistrate was of the view that no such compromise had been entered into between them. The learned Sessions Judge, however, did not give any opinion on that point but held that the application for maintenance could not be defeated even if there was a compromise between the parties, vide his order dated 27th June, 1966.

(2.) THE petitioner has come up to this Court in revision against that order.

(3.) THE point therefore which was argued before me and which really requires determination is whether the wife, even if she lives for some time with her husband after the passing of the order of maintenance in her favour, defeats her right of getting the allowance. In this connection the petitioner's counsel drew my attention to Sub-section (5) of Section 488 of the Criminal Procedure Code, which runs as under-On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order. The learned Counsel for the petitioner submitted that the provisions of this clause indicate that the wife if she lived with her husband even for some time would lose her right of getting maintenance allowance. But this is like importing something foreign to the section. What is required under the above-mentioned provision is that the order allowing maintenance can be cancelled on three grounds only and those are (1) that the wife is living in adultery, (2) that without sufficient reason she refuses to live with her husband and (3) that both of them are living separately with mutual consent None of these ingredients is found in the case before us. In fact this point had been agitated in this Court even earlier and S. B. Capoor J, in Mukund Singh v. Mst. Kartar Kaur 1958-60 Pun LR 145 : AIR 1958 Punj 422, after referring to a number of judgments of various Courts came to the conclusion that an order for maintenance remains in force unless it is cancelled by the Magistrate in appropriate proceedings under Sub-section (5) of Section 488 of the Code. The mere fact that after the passing of such an order, the parties had lived together and resumed cohabitation for a few months, does not make the order inexecutable. The above-mentioned case fully applies to the facts of the present case. Agreeing with the above I see no force in this revision petition and dismiss the same. The petitioner may choose his appropriate remedy in proper proceedings if he is so advised.