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PETITIONER: BHUPINDER SINGH

       Vs.

RESPONDENT: DALJIT KAUR

DATE OF JUDGMENT13/11/1978

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. SHINGAL, P.N. SEN, A.P. (J)

CITATION:  1979 AIR  442            1979 SCR  (2) 292  1979 SCC  (3) 352

ACT:      Criminal Procedure Code, 1973, Section 125 Scope of.

HEADNOTE:      The respondent  obtained an  ex parte maintenance award for a  sum of  Rs. 250/-  p.m. from  the Court  of competent jurisdiction under  Sec. 125  Crl.P.C.  Subsequently,  as  a result of a compromise between the parties and resumption  of  cohabitation an  application was made by the respondent praying that  her application  for maintenance  be dismissed and the execution proceedings for recovery of maintenance be withdrawn. Though the Trial Court did not proceed to recover the arrears  of maintenance  it did not set aside the award. As the respondent was betrayed, she proceeded to enforce the order  for   maintenance.  The   petitioner   resisted   the application on  the ground  that resumption of cohabitation, after the original order for maintenance revoked the said order. This  plea having  been rejected  right  through  the petitioner came up by way of special leave.       Dismissing the petition, the Court, ^      HELD: the  Criminal Procedure  Code is  complete on the topic and  any defence against an order passed under section 125 Crl.P.C.  must be  founded on  a provision  in the Code. Section 125 b 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)(S) or  section 127  of the  Code it ii 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 (S) 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. [294G-H, 295A]      A statutory  order can ordinarily be demolished only in terms of  the statute. That being absent in the present case the Magistrate  will execute  the order for maintenance [295 B] Fazal  Din v.  Mt. Fatima,  A.I.R  1932  Lahore  P.  115;

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approved.      Natesan Pillai  v. Jayammani, A.I.R. 1960 Madras, U. Po Chein v.  Ma Sein  Mya, A.I.R.  1931 Rangoon,  89, Ampavalli Veerabhadrudu v.  Ampavalli Gaviramma  1955 A.l.R. (Crl.) p. 244; over-ruled.

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Review Petition No. 95 of 1978.      K.R.  Nagaraja,  S.K.  Metha  and  P.N.  Puri  for  the petitioner. 293      The order of the Court was delivered by      KRISHNA IYER,  J.-A short  narrative of  the  facts  is necessary to  explore and  explode  the  submission  that  a substantial question  of law  arises, which  merits grant of leave under  art. 136 of the Constitution. The respondent is the wife of the petitioner. She moved the Magistrate, having jurisdiction  over   the  subject-matter,   for   grant   of maintenance under  Sec. 125  of the Criminal Procedure Code. The Court  awarded maintenance,  in a  sum of  Rs. 250/- per mensem but  the order was made ex-parte since the petitioner did not  appear in  court. The motion for setting aside the- ex parte  order was  dismissed whereupon a criminal revision was filed  by the  husband before the High Court. During the pendency of  the said petition a compromise was entered into between the  parties as  a result  of which the wife resumed cohabitation with  the husband.  This resumption of conjugal life was followed by an application by the wife (respondent) praying that  her application  for maintenance  be dismissed and the  execution proceedings  for recovery  of arrears  of maintenance be  withdrawn. Apparently,  on  this  basis  the trial  court   did  not   proceed  to   recover  arrears  of maintenance. But  as the  record now  stands, the  order for maintenance remains. That has not been set aside and must be treated as  subsisting. The  High Court apparently dismissed the revision  petition on  the score  that the  parties  had compromised the dispute.      Later developments  were not as smooth as expected. The wife was  betrayed,  because  her  allegation  is  that  her husband is  keeping a  mistress making it impossible for her to live  in the  conjugal home.  Naturally, the proceeded to enforce the  order for maintenance. This was resisted by the petitioner  (husband)  on  the  ground  that  resumption  of cohabitation, after  the  original  order  for  maintenance, revoked the said order. This plea having been rejected right through, the  petitioner has  come up  to this Court seeking leave to appeal. The short question of law pressed before us is that  the order  for maintenance under section 125 of the Code is superseded by the subsequent living of the wife with the husband and is unavailable for enforcement.      Counsel has relied on a ruling of the Madras High Court in A.I.R.  1960 Madras 515. The holding in that case is that resumption of  cohabitation puts  an end  to  the  order  of maintenance. The learned Judge observed:           "on the  authority of  the above  decisions I must      hold in  this case  that there  was a  reunion for some      time and that put ran end to the order under S. 488 Cr.      P. C.  If the  wife separated  again from  the husband,      then she must file another peti- 294      tion, a  fresh cause  of action, and obtain an order if      she satisfied the Court that there is sufficient reason

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    to leave  her husband and that he neglected to maintain      her."      To the  same effect  is the decision of the Andhra High Court reported  in 1955  Andhra Law Times Reports (Criminal) Page 244. The head note there leads           "If  a   wife  who   has  obtained   an  order  of      maintenance under  Sec. 488  rejoins  her  husband  and      lives with  him, the  order is  revoked and  cannot  be      enforced subsequently, if they fall out again. If there      are fresh  grounds" such as would entitle her to obtain      maintenance under  Section 488,  it is  open to  her to      invoke the  jurisdiction of  court once  again for  the      same relief."      An earlier  Rangoon case  (A.I.R. 1931  Rangoon 89)  as lends support to this proposition.      A contrary  position has  found favour  with the Lahore High Court  reported in A.I.R. 1932 Lahore p. 115. The facts of that  case have  close, similarity to the present one and the head-note  brings out the ratio with sufficient clarity. It reads:      Shadi Lal, C. J. observed:           Now,  in  the  present  case  the  compromise,  as      pointed out  above, was  made out of Court and no order      under S.  488, Criminal  P. C. was made in pursuance of      that compromise,  Indeed, the  order of  the Magistrate      allowing maintenance  at the  rate of Rs. 10 per mensem      was neither  rescinded nor  modified, and no ground has      been shown  why that  order should  not be enforced. If      the husband  places his  reliance upon the terms of the      compromise, he  may have  recourse to  such remedy in a      civil Court  as may  be open to him. The criminal Court      can not  however take  cognizance of the compromise and      refuse to enforce the order made by it." This reasoning of the learned Chief Justice appeals to us.      We are  concerned with  a Code which is complete on the topic and  any defence against an order passed under section 125 Cr1.  P. C.  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. 295 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)  ar  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.      A statutory  order can ordinarily be demolished only in terms of  the statute. That being absent in the present case the Magistrate  will execute  the order for maintenance. Our order does  not and  shall not  be deemed  to prejudice  the petitioner in  any proceedings  under the  law which  he may start to vacate or vary the order for maintenance. S.R.                                     Petition dismissed. 296

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