Decided on October 23,1957

KARTAR KAUR Respondents


- (1.) MUKAND Singh has filed a petition for revision of the order of the learned sessions Judge, Bhatinda, dated 13-2-1957, upholding the order of Magistrate 1st class, Bhatinda, dated 22-10-1956, whereby he was directed to pay arrears of maintenance allowance to his wife Shrimati Kartar Kaur, who will hereafter be referred to as the respondent.
(2.) THE facts are that Kartar Kaur had obtained an order under Section 488 of the code of Criminal Procedure for the amount of Rs. 15/- per mensem as maintenance allowance to her by her husband Mukand Singh. The maintenance allowance was paid for some months but as alleged by Kartar Kaur, Mukand Singh took her to his house in March, 1954, and the parties lived together for a few months. After she had become pregnant from him, Mukand Singh turned her out in november, 1954, after maltreating her and she gave birth to a daughter in the house of her father. She prayed for realisation of the arrears of maintenance allowance and her application was met by the contention that she was living in adultery and could not therefore claim maintenance from Mukand Singh. The parties produced evidence in the Magistrate's Court and he came to the conclusion that the plea as to Kartar Kaur living in adultery could not be believed. This conclusion was affirmed by the learned Sessions Judge, Bhatinda, before whom the matter was taken in revision by Mukand Singh. In the Sessions Court, a legal point was taken on behalf of the petitioner to the effect that on the admission of the respondent that she had resumed co-habitation with the petitioner, the maintenance order became ineffectual and inexecutable. This contention was repelled by the learned Sessions Judge, but has again been stressed in revision in this Court though the objection as to the respondent living in adultery was given up.
(3.) THE sole question therefore now is whether the maintenance order is not now capable of enforcement on account of the parties having lived together and resumed cohabitation for a few months. On this question, there is conflict of views between the various High Courts. Rangoon High Court in Ellen Ma Noo v. William Po Thit, air 1924 Rang 314 (A), held that resumption of the co-habitation by the wife removed the very basis of the order which were neglect and refusal to maintain and accordingly that order became ipso facto annulled. This view was followed in Venkayya v. Raghavamma, AIR 1942 Mad 1 (B ). Both these cases relate to decrees for maintenance passed by civil Courts, but in munuswami Pillai v. Doraikannu Ammal, AIR 1946 Mad 222 (C), the same principle was applied on an order under Section 488 of the Code of Criminal Procedure.;

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