- (1.) SHINGHAL, J. This revision petition of the husband of Smt. Sushila Devi (non-petitioner No. 1) is directed against the judgment of learned Additional Sessions Judge, Ajmer, dated March 9, 1972, by which he has upheld the order of the City Magistrate of Ajmer dated September 22, 1971 for the payment of Rs. 4,188. 50 in four monthly instalments, within a period of 4 months. The controversy in this court centres around two points only, which can be decided on the basis of the admitted facts.
(2.) SMT. Sushila Devi filed an application for an order for maintenance of herself and her daughter under sec. 488, Code of Criminal Procedure, on November 12, 1963. It was dismissed in default of her appearance on July 6, 1965 and it is not disputed that while restoring the application it was made a condition that SMT. Sushila Devi would not claim the maintenance for the period preceding July 7, 1965. The learned City Magistrate ultimately passed an order on March 14, 1969, directing that the present petitioner Karan Singh shall make a monthly allowance of Rs 60/- for the maintenance of SMT. Sushila Devi, and Rs. 20/- for the maintenance of their daughter. That order became final on September 10, 1969, when the revision petition which was directed againt it was dismissed as not pressed. In the meantime, SMT. Sushila Devi made an application on April 14, 1969 for recovery of the amount of maintenance due to her from the petitioner. She revived that application on August 27, 1970 as her earlier application had been stayed by an order of the Court of Session. The learned City Magistrate then made the aforesaid order dated September 22, 1971 for the recovery of the Rs 4,188. 50 in four monthly instalments. As that order has been upheld by she Additional Sessions Judge, Ajmer, on March 9, 1972. Karan Singh has applied to this Court for its revision. These facts are not in dispute in this Court. It has been argued by Mr. Bhandari, learned counsel for the petitioner, that the aforesaid order of the learned City Magistrate dated March 14, 1965, for the maintenance of Smt. Sushila Devi and her daughter, was automatically cancelled on September 10, 1969 when she began to live with the petitioner and that it could not be revived by her living separately after a few months. Reliance in this connection has been placed on the decisions in Vasentam Venkayya vs. Vasentam Raghavamma (1), Kappuswamr Padayachi vs. Jagadambal (2), S. Natesa Pillai vs. Jayammal (3), Kasha-wwa vs. Phadeppa Sangappa (4), and Bussa Ansuya vs. Bussa Rajaish (5 ). The first argument for consideration therefore is whether the order for maintenance dated March 14, 1969 was automatically cancelled on September 10, 1969 because Smt. Sushila Devi lived with her husband for a few months? In examination of the provisions of sec. 488 of the Code of Criminal Procedure shows that it does not provide for the cancellation of the order for maintenance on the ground that the wife,, or the child, at one point of time, lived for a while with the husband or the father, after the making of the order, and separated thereafter. Sub-sec. (5) of that section provides for the cancellation of the order for maintenance, but only on proof that the wife was living in adultery, or that without sufficient reason she had refused to live with her husband, or that they were living separately by mutual consent. There is therefore no provision in sec. 488 of the Code of Criminal Procedure for the cancellation of the order for maintenance on the ground that the wife or the child lived with the husband or the father for some period of time after the passing of the order. Sec. 489 of the Code deals with alteration in the allowance received by a person under sec. 488, and sub-sec. (2) of that section provides that where it appears to the Magistrate that, in consequence of any decision of a compenent Civil Court, any order made under sec. 488 should be "cancelled" or varied, he shall "cancel" the order or, as the case may be, vary the same accordingly. That section also does not therefore provide for cancellation of the order for maintenance on the ground that the wife or the child lived with the husband or the father for some period of time and left him thereafter. There is thus no provision in the Code of Criminal Procedure for the automatic cancellation of an order for maintenance passed under sec. 188 and, in view of the provisions of sub sec. (3) of that section, all that can be said is that an order for maintenance should be treated as having been suspended during the period when the wife or the child lived with the husband or the fa her because then there would be "sufficient cause" for his not complying with it during the at period. It would follow that the order would become enforceable after the wife or the child started living separately with the husband or the father without mutual consent within the meaning of sub-sec. (5) of sec. 488. In this view of the matter, I am unable to upheld the argument that the order for maintenance dated March 14, 1969 was automatically cancelled on September 10, 1969. I am fortified in the view I have taken by the decisions in Parul Bala Debi vs. Satish Chandra Bhattacharies (6), Mt. Kauhra Bi vs. Mohmmad Yusuf (7) and Pearey Lal vs. Mt Naraini (8) which has been followed in Rup Ram vs. Srimati Nathia (9) and Smt. Pholbani vs. State through Sheo Nath (10), as well as by the decisions in John P. S. Coelhe vs. Mrs. Blanche Coelhe (ll), Kashinath Panda vs. Padmabati Debi (!2), Mukand Singh vs. Mst. Kartar Kaur (13), Laxman Gajju vs. Sitabai Laxman (14) and Prof. I. D. Singh vs. Mrs. Prabha Smgh (15 ). I have gone through the decision in Vasantam Vehkayya vs. Vasantam Raghavamma (l) on which reliance has been placed by the learned counsel for the petitioner. That was however a different case where the wife had obtained a decree from a civil court for maintenance against her husband and it was held that the decree-sd affered in no important respect from as order of permanent alimony embodied in a decree for judicial separation. That was why the English principle was applied that as the wife resumed co-habitation with her husband after the decree, the decree had become ineffective and could not be enforced The decision in fact proceeded on a consideration of the decsion in Haddon vs. Raddon (16 ). The nature of that decision has been considered in Laxman Gajju vs. Sitabai Laxman (14), to which reference has been made already, and it has been shown how the English decision proceeded on the wordings of sec. 4 of the Matrimonial Causes Act, 1878, under which the order given by the court was somewhat similar to a decree for judicial separation even though it was not actually a decree of that nature because the section provided that an order thereunder shall have the force and effect in all respects of a decree for Judicial separation on the ground of cruelty. The decision in Vasantam Venkayya's case (1) has therefore no bearing on the present controversy.
(3.) I have also gone through the decision in Suppuswami Padayashi vs. Jagadambal (2 ). There the view taken in Vasantam Venkayya's case (l) was applied to an order for maintenance passed under sec. 488 of the Code of Criminal Procedure under the impression that there was no difference between an order passed under sec. 488 of that Code and an order under the Matrimonial Causes Act, 1878 As has been shown in Laxman Gajju's case (14), that reasoning is not tenable, and I am in respectful agreement with that view. The same is the position regarding the decision in S. Natesa Pillai vs. Jayammal (3) for it was based on the decision in Kuppaswami Padayachi's case (2 ). In the two remaining cases of Keshawwa vs. Phadeppa Sanga-ppa (4) and Bussa Ansuya vs. Bussa Rajaish (5), their Lordships followed the decision in Vasantam Venkayya's case (l), but they were cases in which decrees had been passed lor judicial separation or maintenance and were therefore quite dissimilar from the present case. Thus the decisions on which reliance has been placed by the learned counsel for the petitioner are of no avail to htm and I have no hesitation in rejecting the first argument of the learned counsel. It has next been argued that Smt. Sushila Devi could not claim the recovery of any amount beyond a period of one year and that the courts below erred in upholding her claim for the recovery of the allowance of maintenance for the period from July 7, 1965 to August 31, 1970. Reference in this connection has been made to the second proviso to sub-sec. (3) of sec. 488 of the Code of Criminal Procedure and to the decision in Shyam Behari Lal vs. Shrimati Dayawati (17 ). Sub-sec. (2) of sec. 488 of the Code of Criminal Procedure provides that the allowance for maintenance "shall be payable from the date of the order, or if so ordered from the date of the application for maintenance" As has been stated, the Magistrate made the allowance payable from July 7, 1965 because of the dismissal of the application in default of appearance and the condition which was imposed for its restoration. It will be recalled that that order became final after the dismissal of the revision petition on September 10, 1969 and it will therefore follow that the date from which the allowance would be payable is July 7, 1965. ;