Kudupudi Lakshmi Veera Venkatarathnam Vs Kudipudi Sri Krishna Vara Prasad and others

@JUDGMENTTAG-ORDER

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 EP No.148 of 1992 in OS No.12 of 1968 by which her execution petition was dismissed on the ground that her decree has become nullity and nonexecutable. 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 OS No.12 of 1968 has been decreed on a compromise and according to the compromise the judgement - 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 compromise 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 nonexecutable. 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 (2) ALD 1073 :1996 (1) ALT (Cri) 352, and the judgment of the Supreme Court in Bhupinder Singh Vs. Daljit Kaur, . 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 u/s 18 and Section 25 of the Hindu Adoption and Maintenance Act. Under the provisions of the Hindu Adoption 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 u/s 115 of CPC 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 OS No. 12 of 1968 and it was a decree for maintenance. It is also an admitted fact that the 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 seperately, 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 at 12% p.a.

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

So for as the nature of the decree that has been passed is concerned, it is executable and it makes no difference in view of theamendment to CPC 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 dt. 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.

3. The learned Counsel for the petilioner 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 Bussa Ansuya Vs. Bussa Rajaiaha, , and also the judgment of the Madras High Court in Perundevi Ammal Vs. Amavasikan and Others, , 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 (supra) applies only to maintenance granted u/s 125 Cr.PC but not to the maintenance granted u/s 18 read with Section 25 of the Hindu Adoption and Maintenance Act and therefore the contention of the learned Counsel for the petitioner cannot be accepted.

4. 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 (supra) the Supreme Court has ruled that in case an order of maintenance is obtained by the wife u/s 125 Cr.PC, 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 Adinaryana''s case (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 Cr.PC. On the other hand, in Bussa Ansuya Vs. Bussa Rajaiaha, , 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."

5. Almost to the same effect is the judgment of the High Court of Madras in P. Animal''s case (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 judgements - 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 Cr.PC and also to Section 18 of the Hindu Adoption 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 Cr.PC would not be applicable to the decree granted u/s 18 of the Hindu Adoption 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 Cr.PC also holds good relating to Section 18 of the Hindu Adoption 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 Cr.PC 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 the Magistrate thinks fit, and to pay the same to such person as the Magistrate may from lime to time direct.

(2).....

(3).....

(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).....

From the above it is clear that u/s 125 Cr.PC 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 Adoption 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 stay, 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 Adoption 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 u/s 125 Cr.PC and u/s 18 of the Hindu Adoption 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 u/s 125 Cr.PC or decree u/s 18 of the Hindu Adoption 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 Adoption and Maintenance Act is wider than Section 125 Cr.PC. But Section 125 Cr.PC is provided as a speedier remedy than the remedy u/s 18 of the Hindu Adoption and Maintenance Act. Moreover, Section 127(2) Cr.PC provides that if it appears to the Magistrate that in consequence of any decision of a competent Civil Court, any order made u/s 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 Cr.PC as well as Section 18 of the Hindu Adoplion 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 Cr.PC are passed or after decree under the Hindu Adoption and Maintenance Act is passed.

7. It appears even as regards the orders passed u/s 125 Cr.PC 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 judgements 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 Cr.PC, 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 u/s 125 Cr.PC 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 u/s 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 La] Chief Justice is sound."

The above law declared by the Apex Court, in my opinion, would hold true even witli regard to the decree obtained u/s 18 of the Hindu Adoption and Maintenance Act since the object of Section 125 Cr.PC and Section 18 of the Hindu Adoption and Maintenance Act is one and the same, except some other conditions imposed by the respective sections. The order obtained u/s 125 Cr.PC or a decree obtained u/s 18 of the Hindu Adoption 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 Bhupender Singh''s case (supra) would be equally applicable to a maintenance decree u/s 18 of the Hindu Adoption 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 anulled by any competent Court. But, according to the judgment of the single jugde of this Court in B. Anasuya''s case (3) cited supra and also the judgment of the High Court of Madras in P. Animal''s case (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 Biswas (Smt) Vs. Swagata Biswas and Another, , 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 u/s 125 Cr.PC 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 impromptu 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 judgement, 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 u/s 125 Cr.PC or u/s 18 of Hindu Adoption and Maintenance Act. In view of this principle of law declared by the Supreme Court, which principle also equally applies to the decree obtained u/s 18 of the Hindu Adoption and Maintenance Act, I have to take that, the judgments of this Court in Bussa Ansuya Vs. Bussa Rajaiaha, and Judgment of the Madras High Court in Perundevi Ammal Vs. Amavasikan and Others, . would no longer hold the field. In the instant case, apart from the above principle, the compromise decree itself enables the wife toclaim 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 judgement-debtor expressing her intention and the judgement-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 (ived 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 anulled, 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 C.P.C. and according to the said provision, if a compromise is entered into between the parties in the suit regarding certain matters, which were out side 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 ofthe High Court of Orissa in Chandrasekhar Patel Vs. Ukiabati Patel and Others, . 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 Trilok Chand Kapur Vs. Dayaram Gupta, , a Division Bench of the Calcutta High Court dissented from the views expressed by Andhra Pradesh High Court in Seth Harak Chandas Vs. Hyderabad State Bank, Hyderabad, , and the Allahabad High Court in AIR 1933 All 649 (FB), Shyam Led 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 Seth Harak Chandas Vs. Hyderabad State Bank, Hyderabad, , which is a Division Benchjudgement of this Court. In the said judgement, the Division Bench of this Court has clearly ruled 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 relating 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 could 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 to 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 respondent 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 7 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 partof the wife or there is any abandonment of the decree on her side. Therefore, the said judgement 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 judgement 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 judgement and order of the Additional District Munsif, Tadepalligudem dated 30-9-1996 in EP No.148 of 1992 in OS No. 12 of 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.