VASANTAM VENKAYYA Vs. VASANTAM RAGHAVAMMA

JUDGEMENT

(1.) This appeal raises the question whether a wife who has obtained a decree for maintenance can enforce it after having cohabited with her husband. The appellant is the husband of the respondent. In 1930 the respondent instituted a suit in the Court of the District Munsif of Bapatla for a decree for maintenance. She alleged that her husband had so illtreated her that she was unable to live with him. On the 23 June, 1930, by consent a decree was passed in her favour for Rs. 120 per annum. Shortly after this decree had been passed the parties decided that they could live together happily and the wife returned to the husband. They lived together for several years. According to the appellant the second separation did not take place until the 24 August, 1937, but according to the respondent, it took place on the 15 July, 1935. Admittedly they lived together for over five years and during this period the respondent bore a son to her husband. On the 2nd May, 1939, the respondent filed an application for execution of the decree which she had obtained on the 23 June, 1930. She asked for the payment of Rs. 663-12-0, being maintenance calculated at the decretal rate from the 15th January, 1935. The appellant opposed the application. He contended that by reason of the fact that his wife had returned to him and had lived with him for five years thereafter the decree had become a nullity. The District Munsif overruled the objection and his decision was concurred in by the Subordinate Judge of Tenali on appeal. This appeal is Vet from the order of the Subordinate Judge. The appellant main- Ratains the contention which he advanced below. For the respondent it is said that the decree not having been set aside, adjusted or satisfied, she is at liberty to execute it. Her learned advocate went so far at one stage as to say that she could have executed the decree against her husband during the five years she was living with him but later asked the Court to regard the decree as being suspended during the period they were living together.

(2.) In Bateman V/s. Countess of Ross (1813) 1 Dow. 235 : 3 E.R. 684, Lord Eldon held the general doctrine to be clear, that a reconciliation after a separation entirely did away with the effects of the separation. This doctrine was applied by a Division Bench composed of Hawkins and A. L. Smith, JJ., in Haddon V/s. Haddon (1887) 18 Q.B.D. 778 and by Jeune P. and Gorell Barnes, J., in Williams v. Williams (1904) Prob. 145. In Haddon V/s. Haddon (1887) 18 Q.B.D. 778, the Justices of the County of Leicester made an order under Section 4 of the Matrimonial Causes Act, 1878, that the wife should be no longer bound to cohabit with her husband and that he should pay to her a weekly sum for her maintenance. After the order had been passed the wife resumed cohabitation with the husband but the reunion did not prove to be permanent. The question was whether she was entitled to enforce the order which she had obtained against him before she resumed cohabitation. It was held that the order was annulled by reason of the subsequent resumption of cohabitation and therefore the wife could not enforce payment of the weekly sums. Hawkins, J., said: It is impossible to suppose that the Legislature, in giving Magistrates power to release a wife from the obligation of cohabitation by reason of imminent danger from her husband's violence, intended to confer upon them jurisdiction to make an order which should give a wife liberty to live apart from, and resume cohabitation with, her husband when and as of ten as she should think fit, and compel her husband to maintain her at all times when it pleased her to separate from him, even though her safety no longer required a separation.

(3.) If she was compelled to leave him after resuming cohabitation she should apply for a new order. In discussing the judgment of Lord Eldon in Bateman V/s. Countess of Ross (1813) 1 Dow. 235 : 3 E.R. 684, Hawkins, J., pointed out that the general principle stated by Lord Eldon was expressly recognised by the Court of Appeal in Nicol V/s. Nicol (1886) 31 Ch.D. 524 and that in Linton V/s. Linton (1885) 15 Q.B.D. 239 at 245, Lord Esher in speaking of weekly alimony ordered to be paid to a wife by the Divorce Court had said that they were not payments of a life annuity; they might be stopped at any moment if the husband and wife returned to cohabitation.