KANAGAMMAL Vs. PANDARA NADAR

JUDGEMENT

(1.) In 1921 the petitioner applied for and obtained an order against her husband, the counter-petitioner, under Section 488 Criminal P. C. for the payment of maintenance for her self and her daughter at the rate of Rs. 8 per mensem. Subsequently during the years 1922-23, she returned to the counter-petitioner and lived with him, bearing him another child. She then left him again and in 1924 applied to execute the maintenance order, but her petition was dismissed. Then she came up to this Court in revision, Criminal Revision Case No. 52 of of 1925 and Jackson, J., cancelled the Divisional Magistrate's order rejecting her application, leaving it to him either to give her arrears under the old order or if it was found that the order was no longer in existence to let her file a fresh application. Accordingly on 22 August, 1925 she filed a petition for 11 months arrears of maintenance up to that date. The learned Sub-Divisional Magistrate in the order which it is now sought to revise, held that the reconciliation between husband and wife had brought the old order to an end automatically, so that it lay on the petitioner to adduce further proof that she was entitled to maintenance. The point now arising for decision therefore is whether the original order granting maintenance may be deemed to be still in existence.

(2.) It is a general principle of law that an order whose term is not fixed and whose currency is not made expressly dependent upon the continued existence of some circumstance or set of circumstances remains in force until it is cancelled; and prima facie this rule applies to maintenance orders passed under Section 488 Criminal P. C.. Sub-S. (5) of that section provides that in certain specified circumstances where a wife is living in adultery, where without sufficient reason she refuses to live with her husband, or where the parties are living separately by mutual consent, the Magistrate shall cancel the order. It is also open to the Court, under Section 489, to make an alteration in the allowance on proof of a change in the wife's circumstances. In such cases, it will be for the counter-petitioner to obtain either the cancellation or the modification of the original order and until he does that, the original order must be deemed to be still in force. The mere fact, for instance, that a wife is living in adultery will not bring the order to an end automatically. If it did so there would be no need for the Court to cancel it. And similarly, the mere fact that a wife has returned to live with her husband will not have this effect, although it is true that the Code makes no provision for its cancellation upon such an event occurring. Nor does it make any provision, to take another example, for cancelling the order upon proof that the husband has divorced his wife.

(3.) A case of the latter kind came before the Allahabad High Court in Shah Abu Ilyas V/s. Ulfat Bibi [1897] 19 All. 50 and it was held to be the duty of the Court if the plea of divorce was established, to decline to enforce the order which it had discretion to do under Section 490 Criminal P. C. and so if a wife returns to live with her husband it would be open to the Court to decline to enforce the order whether or not it would have the power in the absence of any statutory provisson to cancel it. The order would remain in suspense. This was the view taken in Parul Bala Debi V/s. Satish Chandra Bhattacharjee A. I. R. 1923 Cal. 456 where a wife had temporarily returned to her husband and had left him again: A mere temporary stay of this kind though it may have suspended the operation of the order had not the effect of cancelling it in the way that it could be cancelled under Section 488 (5) of the Code.