Judgment - Maintenance - Maintenance to Wife

Court: Andhra Pradesh High Court

Bench: JUSTICE B.S. Raikote

Smt. Kudupudi Lakshmi Verra Venkataratnam Vs. Kudupudi Sri Krishna Vara Prasad & Ors. Decided on 24 November 1998

Law Point:
Maintenance : Husband Neglects Wife Without Reasonable Cause — Both under Section 125, Criminal Procedure Code and under Section 18, Hindu Adoptions and Maintenance Act, if husband neglects wife without any reasonable cause, wife would be entitled to maintenance — Object of both sections is to provide maintenance to neglected wife — Scope and difference in two sections — Subsequent resumption of cohabitation would not affect decree of maintenance obtained by wife against her husband, unless by mutual consent husband and wife vary or cancel decree or it is cancelled by Competent Court.

JUDGEMENT

1. This petition is filed by the decree-holder. The decree-holder is the wife of the first respondent. She has challenged the impugned judgment and decree dated 30.9.1996 passed in E.P. No. 148 of 1992 in O.S. No. 12 of 1968 by which her execution petition was dismissed on the ground that her decree has become nullity and non-executable. The learned Counsel appearing for the petitioner contended that the relationship between the petitioner and the first respondent as husband and wife is admitted. It is also admitted that the suit filed by the wife in O.S. No. 12 of 1968 has been decreed on a compromise and according to the compromise the judgment-debtor shall take the decree-holder to his house and maintain her and if for any reason the decree-holder could not live with the judgment-debtor, the decree-holder by serving a registered notice to the judgment- debtor can claim maintenance under the decree. It is no doubt true that the wife lived with the husband after the decree in terms of the compromise but subsequently when the differences arose between them she decided to live separately. As per that Promise decree she is entitled to maintenance. The learned Counsel further submitted that the Court below erred in dismissing the E.P. filed by the wife only on the ground that she has cohabited after the decree and hence the decree has become non-executable. He submitted that the Court below relied upon a judgment which is no more good law in view of the latest judgment of this Court in J. Adinarayana v. J. Appalanarasamma, 1996 (1) ALT (Cr.) 352, and the judgment of the Supreme Court in Bhupinder Singh v. Daljit Kaur, AIR 1979 SC 442, Thus he submitted that the petitioner is entitled to succeed and there should be a direction to the Executing Court to execute the decree laid by her. On the other hand, the learned Counsel appearing for the respondent contended that the rulings which are being relied upon by the Counsel for the petitioner are the rulings under the Code of Criminal Procedure and they do not apply to a decree obtained under Section 18 and Section 25 of the Hindu Adoptions and Maintenance Act. Under the provisions of the Hindu Adoptions and Maintenance Act if a decree has been obtained by the wife and if there is subsequent cohabitation, the decree becomes inexecutable since the cause for maintenance ceases to exist and therefore the impugned order is quite proper and does not call for interference by this Court under revisional jurisdiction under Section 115 of Civil Procedure Court and hence the revision petition is liable to be dismissed.

2. From the contentions of the learned Counsel appearing for both sides it is clear that it is an admitted fact on both sides that there was a decree in favour of the wife in O.S. No. 12 of 1968 and it was a decree for maintenance. It is also an admitted tact that he said decree was passed on a compromise entered between the parties on the following terms :

(a) The judgment-debtor shall take the decree-holder to his house and maintain her leading a happy family
life.

(b) The decree-holder shall also live with the judgment-debtor and lead a family life.

(c) For any reason they could not live together and decree-holder decides to live separately, the decree-holder shall serve a registered notice on judgment-debtor about her intention and the judgment-debtor shall pay maintenance at 7 bags of paddy per year irrespective of the question whose fault is, for separate living.

(d) In case of default of the payment of maintenance the judgment-debtor agreed to pay the maktha together with interest ® 12% p.a.

(e) That the A schedule property shall stand as a charge for maintenance.

3. So far as the nature of the decree that has been passed is concerned, it is executable and it makes no difference in view of the amendment of Civil Procedure Code in the year 1976. The said decree has become final. As per one of the terms of the decree a charge is created on the property. It is an admitted fact that after the decree dated 22.3.1968 the decree-holder and the judgment-debtor lived together as wife and husband and also begot two children and it is thereafter differences arose between them. Having regard to these admitted circumstances, now the short point for my consideration would be whether the decree based on a compromise has become a nullity due to the resumption of cohabitation between the husband and wife subsequent to the decree.

4. The learned Counsel for the petitioner relied upon a judgment of the Supreme Court in Bhupinder Singh’s case cited (supra) contending that as per the law declared by the Supreme Court the wife would be entitled to execute the maintenance decree notwithstanding that there was a cohabitation between the parties meanwhile and he further submitted that due to cohabitation the decree does not stand wiped out and that in the instant case the decree is kept alive between the parties by one of the terms of the compromise and therefore the Court below is in error in refusing to execute the decree only on the ground that there is cohabitation subsequent to the decree. The learned Counsel for the respondent, on the other hand, relied upon the judgment of this Court in B. Anasuya v. B. Rajaiah, AIR 1971 AP 296 and also the judgment of the Madras High Court in P. Ammal v. Amavasikan, AIR 1957 Mad. 113, contending that the subsequent cohabitation nullified the decree. He further submits that the law laid down by the Supreme Court in Bhupinder Singh’s case cited (supra) applies only to maintenance granted under Section 125, Criminal Procedure Code but not to the maintenance granted under Section 18 read with Section 125 of the Hindu Adoptions and Maintenance Act and therefore the contention of the learned Counsel for the petitioner cannot be accepted.

5. It is not disputed and cannot be disputed also that if there is a judgment of the Supreme Court as against the judgments of this Court or any other High Court, the judgment of the Supreme Court binds this Court in view of Article 141 of the Constitution of India. Prima facie, in Bhupinder Singh’s case cited (supra) the Supreme Court has ruled that in case an order of maintenance is obtained by the wife under Section 125, Criminal Procedure Code, a subsequent cohabitation between them would not invalidate the decree. In fact, following this judgment of the Hon’ble Supreme Court another learned Single Judge of this Court in Adinarayana’s case cited (supra) also held that the subsequent cohabitation between the wife and husband would not disentitle the wife for maintenance. That was also a judgment in relation to Section 125, Criminal Procedure Code. On the other hand, in B. Anasuya’s case cited (supra) the learned Single Judge of this Court held that the Resumption of cohabitation by the couple after the maintenance decree nullifies that decree. He further held as under :

“The principle is whether there has been resumption of cohabitation so as to demolish the effect of the decree. Whether there has been resumption of the cohabitation or not does not depend upon the duration of the stay. It rather depends on the animus of the parties and their mental attitude in coming together again.”
Almost to the same effect is the judgment of the High Court of Madras in P. Ammal’s case cited (supra). The High Court of Madras also held that in case of resumption of cohabitation between the husband and wife, such cohabitation must be presumed to be the result of reconciliation and not for any satisfaction of carnal craving and in case a child is born meanwhile, there would not be any difficulty in holding that the previous conduct of the husband and wife and the differences between them must be held to have been wiped out and therefore the decree based on the cause of action must be deemed to have ceased to exist and as such the decree for future maintenance cannot be permitted to be enforced by the Court of Law.

6. From the above two sets of judgments—one on criminal side and the other on civil side—now I have to see whether there is any difference between the decree or order obtained on criminal side and the decree or order obtained on the civil side. The learned Counsel for the petitioner inviting my attention to Section 125, Criminal Procedure Code and also to Section 18 of the Hindu Adoptions and Maintenance Act contended that the scope and operation of these two sections is entirely different and hence the law declared by the Supreme Court with reference to Section 125, Criminal Procedure Code would not be applicable to the decree granted under Section 18 of the Hindu Adoptions and Maintenance Act. On the other hand, the Counsel for the respondent contended that there is no difference between them and both are executable orders or decrees and as such what holds good relating to Section 125, Criminal Procedure Code also holds good relating to Section 18 of the Hindu Adoptions and Maintenance Act. In order to appreciate this kind of controversy between the Counsel it is appropriate to extract those sections. The relevant portion of Section 125, Criminal Procedure Code is as under :

“Order for maintenance of wives, children and parents—

(1) If any person having sufficient means neglects or refuses to maintain—

(a) his wife, unable to maintain herself; or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself; or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself; or

(d) his father or mother, unable to maintain himself or herself;
a Magistrate of the First Class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct.

(4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent.

(5)
xxx
xxx
xxx
xxx
xxx”

From the above it is clear that under Section 125, Criminal Procedure Code a wife has to prove that the husband has sufficient means and he has neglected or refused to maintain her. It is also the object of the law that wife would not be entitled to receive maintenance if without any sufficient reasons she refuses to live with her husband and if they are living separately by mutual consent. Keeping in view these principles, I am noting Section 18 of the Hindu Adoptions and Maintenance Act by extracting the same as follows :
“Section 18. Maintenance of wife—

(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life-time.

(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance—

(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish or of wilfully neglecting her;

(b) if he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;

(c) if he is suffering from virulent form of leprosy;

(d) if he has any other wife living;

(e) if he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere;

(f) if he has ceased to be a Hindu by conversion to another religion;

(g) if there is any other cause justifying her living separately.

(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to other religion.”
From the above it is clear that Section 18 of the Hindu Adoptions and Maintenance Act also contemplates that a wife would be entitled to maintenance if the husband is wilfully neglecting her or if he is guilty of desertion in terms of Clause 2(a). From a reading of the two sections it follows that both under Section 125, Criminal Procedure Code and under Section 18 of the Hindu Adoptions and Maintenance Act if a husband neglects a wife without any reasonable cause the wife would be entitled to maintenance. Both the sections do not contemplate the effect of cohabitation after an order under Section 125, Criminal Procedure Code or decree under Section 18 of the Hindu Adoptions and Maintenance Act is passed. The object of both the sections is to provide maintenance to a neglected wife. The scope of Section 18 of the Hindu Adoptions and Maintenance Act is wider than Section 125, Criminal Procedure Code. But Section 125, Criminal Procedure Code is provided as a speedier remedy than the remedy under Section 18 of the Hindu Adoptions and Maintenance Act. Moreover, Section 127(2), Criminal Procedure Code provides that if it appears to the Magistrate that in consequence of any decision of a competent Civil Court, any order made under Section 125 should be cancelled or varied, he may cancel or vary the same accordingly. Apart from these minor differences, in my humble opinion, the object of both the sections is same. In substance, the wife can claim maintenance under both Section 125, Criminal Procedure Code as well as Section 18 of the Hindu Adoptions and Maintenance Act from her husband subject to fulfilment of other conditions stipulated in the respective sections. If that is so, it would not make any difference if there is a subsequent cohabitation after the orders under Criminal Procedure Code are passed or after decree under the Hindu Adoptions and Maintenance Act is passed.

7. It appears even as regards the orders passed under Section 125, Criminal Procedure Code there were two opinions earlier. Some set of judgments held that after such cohabitation wife would not be entitled to enforce the order in her favour and some other set of judgments held that wife would be entitled to enforce the order for maintenance notwithstanding such cohabitation. Considering both the views, of course in relation to Section 125, Criminal Procedure Code, the Hon’ble Supreme Court ruled as under :

“We are concerned with a Code which is complete on the topic and any defence against an order passed under Section 125, Criminal Procedure Code must be founded on a provision in the Code. Section 125 is a provision to protect the weaker of the two parties, namely, the neglected wife. If an order for maintenance has been made against the deserter it will operate until vacated or altered in terms of the provisions of the Code itself. If the husband has a case under Section 125(4), (5) or Section 127 of the Code it is open to him to initiate appropriate proceedings. But until the original order for maintenance is modified or cancelled by a higher Court or is varied or vacated in terms of Section 125(4) or (5) or Section 127, its validity survives. It is enforceable and no plea that there has been cohabitation in the interregnum or that there has been a compromise between the parties can hold good as a valid defence. In this view we hold that the decisions cited before us in favour of the proposition contended for by the petitioner are not good law and that the view taken by Sir Shadi Lal, Chief Justice is sound.”

The above law declared by the Apex Court, in my opinion, would hold true even with regard to the decree obtained
under Section l8 of the Hindu Adoptions and Maintenance Act since the object of Section 125, Criminal Procedure Code and Section 18 of the Hindu Adoptions and Maintenance Act is one and the same, except some other conditions imposed by the respective sections. The order obtained under Section 125, Criminal Procedure Code or a decree obtained under Section 18 of the Hindu Adoptions and Maintenance Act, creates a liability on the part of the husband to pay the maintenance including the arrears to his wife. From this it follows that the law declared by the Supreme Court in Bhupinder Singh’s case cited (supra) would be equally applicable to a maintenance decree under Section 18 of the Hindu Adoptions and Maintenance Act. In other words, subsequent resumption of cohabitation would not effect the decree of maintenance obtained by the wife against her husband, unless and until by mutual consent the husband and wife vary or cancel the decree or such order or decree is varied or cancelled by a competent Court. In the instant case, it is nobody’s case that the decree obtained for maintenance by the wife is either modified or annulled by any competent Court. But, according to the judgment of the Single Judge of this Court in B. Anasuya’s case cited (supra) and also the judgment of the High Court of Madras in P. Ammal’s case cited (supra), if there is a cohabitation, the earlier cause of action, on the basis of which the decree was obtained would vanish and as such the decree would become a nullity and in those circumstances, for a fresh cause of action the wife should initiate fresh proceedings for maintenance. But the Hon’ble Supreme Court in the latest judgment in Mahua Bishwas v. Swagata Biswas, JT 1998 (4) SC 252, held that such a course would cause a great hardship to the wife by unnecessarily prolonging the litigation between the husband and wife. In that case also there was an order for maintenance under Section 125, Criminal Procedure Code and there was a compromise between the husband and the wife and as per the compromise the wife joined the husband but thereafter differences arose between them and in those circumstances the wife sought the execution of the maintenance order but the husband prayed for setting aside the same and accordingly the High Court set aside that order. Being aggrieved by the same the wife had approached the Hon’ble Supreme Court. In those circumstances the Supreme Court held as under :

‘‘According to the assertion of the husband-respondent, she had in terms thereof come to live with him but later the spouses fell apart. On that basis it was urged that the orders of maintenance could not be revived as there had arisen a fresh cause of action. The High Court by the impugned order agreed with the husband-respondent and set aside the orders of maintenance altogether, leaving the wife to approach again the Criminal Court for appropriate relief. This constitutes the subject matter of the appeal here.
The matter can be viewed from either angle. It can be viewed that there was a genuine effort by the wife to rehabilitate herself in her matrimonial home but in vain. The previous orders of maintenance in a manner of speaking could at best be taken to have been suspended but not wiped out altogether. The other view can be that the maintenance order stood exhausted and thus she be left to fight a new litigation on a fresh cause of action. Out of the two courses, we would prefer to adopt the first one, for if we were to resort to the second option, it would lead to injustice. In a given case the wife may then be reluctant to settle with her husband lest she lost the order of maintenance secured on his neglect or refusal. Her husband on the other side, would jump to imprompt devices to demolish the maintenance order in duping the wife to a temporary reconciliation. Thus, in order to do complete justice between the parties, we would in the facts and circumstances activate the wife’s claim to maintenance and put her in the same position as before.”

In view of the above law laid down by the Hon’ble Supreme Court in the above judgment, it is clear that once a decree for maintenance is obtained, the same would be final, unless it is modified by the competent Court. If that is so, the subsequent cohabitation between the husband and the wife would have no effect on the decree or order, whether it is obtained under Section 125, Criminal Procedure Code or under Section 18 of Hindu Adoptions and Maintenance Act. In view of this principle of law declared by the Supreme Court, which principle also equally applies to the decree obtained under Section 18 of the Hindu Adoptions and Maintenance Act, I have to take that, the judgments of this Court in B. Ansuya’s case cited (supra) and judgment of the Madras high Court in P. Ammal’s case cited (supra), would no longer hold the field. In the instant case, apart from the above principle, the compromise decree itself enables the wife to claim maintenance after such cohabitation in terms of the decree. As I have already stated above, the decree now under execution is a compromise decree. As per Clause (c) of the said decree, which I have already extracted above, the husband and wife have agreed that for any reason they could not live together, and decree-holder decides to live separately, the decree-holder shall serve a registered notice on the judgment-debtor expressing her intention and the judgment-debtor shall pay maintenance at 7 bags of paddy per year irrespective of the question whose fault it is, for separate living. In view of this Clause in the compromise decree, it is not open to the husband now to say that no doubt they lived as husband and wife in terms of the decree, but due to such subsequent cohabitation, the decree becomes nullity. As I have already stated above, by agreement, the husband and wife have decided to live together with an option to the wife to execute the decree in case of any subsequent differences between them. In this view of the matter, the decree would be enforceable notwithstanding the subsequent cohabitation between them. In other words, such subsequent resumption of cohabitation, the compromise decree does not stand annulled, nor the effect of the decree is taken away. However, the learned Counsel for the respondent strenuously contended that such Clause in the compromise decree was extraneous to the suit, therefore, the said clause, assuming that it binds the parties, is enforceable by a separate suit and as such, the decree cannot be executed. He further submitted that this compromise has been effected prior to 1976 amendment to Civil Procedure Code and according to the said provision, if a compromise is entered into between the parties in the suit regarding certain matters, which were outside the scope of the suit, the decree would be effective only regarding subject matter and regarding certain other matters, only a separate suit would lie and the decree would not be executable regarding such other matters. In support of his contention, he relied upon the judgment of the High Court of Orissa in Chandrasekhar v. Ukiabati, AIR 1977 Ori. 82. Paragraph No. 9 of the said judgment reads as under :

“9. Where a compromise decree contains terms that do not relate to the suit, there is a conflict of opinion whether such terms can be enforced in execution. While Allahabad, Madras and Andhra Pradesh High Courts have taken the view that such terms can, be enforced in execution, the High Courts of Bombay and Calcutta have laid down that such terms cannot be enforced in execution of the decree but they may be enforced as a contract by a separate suit. In AIR 1967 Cal. 541, Trilok Chand, Kapur v. Dayaram Gupta, a Division Bench of the Calcutta High Court dissented from the views expressed by Andhra Pradesh High Court in AIR 1960 Andhra Pradesh 56, Harak Chandas v. Hyderabad State Bank, and the Allahabad High Court in AIR 1933 All 649 (FB), Shyam Lal v. M. Shyamlal, and held as follows :

“If a contract embodied in the compromise petition does not relate to the suit, then such a contract does not become executable as a decree, merely because of its fortuitous embodiment in the operative part of the decree. The person against whom such a contract is sought to be enforced, by process of execution, may justly object to the execution and try to stop such abuse of the process of the Court.”

8. But so far as this Court is concerned, this Court has consistently taken the view that such terms in the compromise decree relating to the subject matters outside the scope of the suit would be enforceable as a part of the decree. But other High Courts have taken a contra view. So far as I am concerned, unless there is a judgment of the Supreme Court, regarding the issue involved, I am bound by the judgment of this Court in Harak Chandas v. Hyderabad State Bank, AIR 1960 AP 56, which is a Division Bench judgment of this Court. In the said judgment, the Division Bench of this Court has clearly rules that where the parties have agreed to certain terms in the compromise, which do not relate to the suit and accordingly a decree is passed, the Executing Court cannot refuse to execute the decree and such a compromise decree has got to be executed to all the matters for which there is a decree. Hence the contention urged in this behalf merits only for rejection. Even otherwise, I do not think that there is anything extraneous in Clause (c) of the compromise decree, What has been agreed to is that for any reason, they would not live together, the wife would be entitled to execute the decree, irrespective of the question whose fault it is for separate living, in my humble opinion, there is nothing which is opposed public policy. The parties wanted to put an end to further litigation and ultimately the husband agreed that the wife would be entitled to maintenance if she decides to live separately. In this view of the matter, the contention raised in this behalf by the learned Counsel for the respondents is liable to be rejected.

9. Lastly, the learned Counsel for the respondents contended that in view of the fact that husband and wife lived together and begot two children, would indicate that the wife has abandoned the decree or she has waived her right in the decree. In support of his contention, he relied upon the judgment of the High Court of A.P., cited (supra). As I have already stated above, when there is Clause (c) in the compromise decree, specially enabling the wife to execute the decree and claim maintenance from the husband, if the wife decided not to live with her husband, I do not think that wife has waived any of her right in the decree. Under Clause (c) of the compromise decree, she has specifically reserved her right to execute the decree notwithstanding the fact that she decided to live with her husband. When she has specifically reserved a right in her favour, I do not think there is any waiver on the part of the wife or there is any abandonment of the decree on her side. Therefore, the said judgment relied upon by the learned Counsel for the respondents does not apply to the facts of this case.

10. For the above reasons, I think that the judgment and order of the Court below is liable to be set aside. Accordingly, I pass the order as under :
The revision petition is allowed. The impugned judgment and order of the Additional District Munsif, Tadepalligudem dated 30.9.1996 in E.P. No. 148/1992 in O.S. No. 12/1968 is hereby set aside by holding that execution petition is maintainable and the compromise decree obtained by the wife is executable. Accordingly, there shall be a consequent direction to the Court below to proceed to execute the decree. No costs.

Revision Petition allowed.

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