GENU TATYABA ZAWARE Vs. TAIBAI GBNU ZAWARE
LAWS(BOM)-1972-9-13
HIGH COURT OF BOMBAY
Decided on September 26,1972

Genu Tatyaba Zaware Appellant
VERSUS
Taibai Gbnu Zaware Respondents

JUDGEMENT

J.R. Vimadalal, J. - (1.) THIS is an application filed by a husband against his wife to revise and set aside the order passed by the learned Presidency Magistrate 29th Court, Bombay, on April 14,1972 directing the issue of a distress warrant to enforce a maintenance order under Section 488 of the Criminal Procedure Code. The trial Magistrate had on August 21, 1970 passed an ex parte order under section 488, Criminal Procedure Code in favour of the respondent -wife ordering the petitioner to pay to the respondent maintenance at the rate of Rs. 25 per month from the date of the application, which was March 30, 1970, as well as the cost of that application. The petitioner applied on September 14, 1970 to set aside that ex parte order and that application is still pending. In the meantime, on October 23, 1970 a joint application was made by the respondent and the petitioner that they had got reconciled on certain terms and, pursuant to that reconciliation, on that very day the respondent -wife went to live with the petitioner in the matrimonial home. The two of them lived together as husband and wife till January 29, 1972 when the respondent left her husband's home in certain circumstances alleged by her to which it is unnecessary to refer. On January 14, 1972, which would be just about a fortnight before she left her husband's home, the respondent filed an application to enforce the maintenance order dated August 21, 1970 passed in her favour by the issue of a distress warrant, as contemplated by sub -section (3) of section 488 of the Criminal Procedure Code. By the said application, she claimed a sum of Rs. 350 as being the arrears of maintenance due to her for the period from March 30, 1970 to July 31, 1970, and a further sum of Rs, 900 by way of maintenance due to her for the period from January 1, 1971 to December 31, 1971. It may be mentioned that the former period was one before the reconciliation of October 23, 1970, and the latter period was a period during the whole of which she was living with the present petitioner in the matrimonial home consequent on that reconciliation. Following the judgment of Bavdekar J. in the case of Laxman Gaju v. Sitabai Laxman : 1957 NI 7J 474 = A I R 1958 Bom. 14 = (1957) 59 Bom. L R 567 in which it was held by that learned Judge that cohabitation as a result of a temporary reunion of the husband and wife did not put an end to an order made in favour of the wife under section 488 of the Code of Criminal Procedure, the learned Magistrate ordered a distress warrant to issue in respect of the maintenance due to the respondent -wife for both the said periods. It is against that order that the husband has approached this Court in revision. I am bound by the decision of Bavdekar J. in Laxman Gaju's case and I must, therefore, hold, as the learned Magistrate did, that the order for maintenance under section 488 passed in favour of the respondent -wife in the present case did not ipso facto come to an end by reason of their reconciliation but would continue to subsist and be in force unless and until it was cancelled by the Court on an application made under section 489 of the Code.
(2.) BAVDEKAR J. has, however, not considered the further question that arises before me viz , whether the operation of an order for maintenance passed under section 488 is suspended during the time that the two spouses are reunited and the wife actually lives with her husband. As far as that is concerned, I have no doubt that the operation of the order would stand suspended during that period, for the entire basis of such an order is the neglect or refusal of the husband to maintain his wife. Happily, I am supported in that view by a decision of a Division Bench of the Gujarat High Court in the case of Mulchand v. Bat Amthi, (1968) 9 Guj LR 878 in which, after an exhaustive review of the authorities, including the decision of Bavdekar J. in Laxman Gaju's case which was approved, it was held that once an order is passed under section 488 it subsists until it is cancelled or set aside by a competent Court under sub -section (5) of section 488 or under section 489 (2), but so long as reunion continues the order remains suspended. I agree with the view taken by the Division Bench of the Gujarat High Court in Mulchand's case and I, therefore, hold that the respondent -wife in the present case is not entitled to recover maintenance under the order dated August 21, 1970 amounting to Rs. 900 for the period from January 1, 1971 to December 31, 1971, during which she was residing with and was being maintained by the present petitioner. The learned Magistrate's order directing the issue of a distress warrant in respect of maintenance for that period is, therefore, erroneous. As far as the period before the reunion of the parties is concerned viz. March 30, 1970 to July 31, 1970, by the very terms of the order dated August 21, 1970, the same was payable on or before October 10, 1970. The second proviso to sub -section (3) of section 488 lays down that no warrant shall be issued for the recovery of any amount due under the said section unless an application is made to the Court to levy such amount within a period of one year from the date on which it became due. The application to enforce payment of the maintenance due for the said period from March 30, 1970 to July 31, 1970 had, therefore, to be made before October 10, 1971. The application on which the lower Court has ordered the issue of a distress warrant was however made only on January 14, 1972, long after the statutory period of a year had expired. It was sought to be contended by the learned advocate for the respondent -wife that he could not apply for enforcement of payment of the maintenance for the period from March 30, 1970 to July 31, 1970 during the time that the order made under section 488 remained in suspense, but I do not see any force in that contention of his for the simple reason that suspension of the order for the maintenance for the period during which the parties were living together cannot affect the right of the wife to enforce payment of what had already become due to her under that order prior to the reunion.
(3.) IN the result, this revision application succeeds and I must make the Rule absolute and set aside the order passed by the learned Magistrate on April 14, 1972 directing the issue of a distress warrant in respect of the maintenance amount for both the periods for which it has been claimed by the respondent -wife. The amount of Rs. 500 deposited in Court by the petitioner -husband under the order of my brother Chandurkar dated May 12, 1972 must be refunded to him.;


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