Document Fragment View

Matching Fragments

(1) The sole question that arise for decision in this reference by the First Additional Sessions Judge, Dharwar is whether a husband can raise a plea that his wife has been living in adultery since the date of the Order for maintenance, during the course of the proceedings for enforcement of the order of whether he should file a separate application for cancellation of the order.

(2) The facts leading to this reference are not in dispute. The respondent Shantadevi filed an application on 25-2-1962 against her husband Shivasankar for maintenance on the ground that her husband had neglected and refused to maintain her by driving her out of house. While denying this allegation, the husband pleaded that his wife had been living in adultery and that she was not entitled to any maintenance. On the date of hearing the husband remained absent and an ex parte order allowing maintenance at Rs. 30 per month was passed in favour of the wife on 13-8-1963. The husband's application for setting aside the ex parte order on the ground that he had been prevented by illness from attending the Court on the date of hearing was dismissed by the Magistrate. The wife filed an application under Section 488(3) of the Code of Criminal Procedure for recovery of Rs.180/- towards arrears of her maintenance. The husband appeared and pleaded that his wife had been living in adultery even after the date of the maintenance order and he was therefore not liable to pay her any amount. The learned Magistrate overruled this objection on the ground that a similar defence had been taken by the husband in the main petition and that in his opinion the objection was intended to delay and defeat the claims of the wife.

(10) The view taken by the majority of the High Court is consisted with the position that the husband can plead as 'sufficient cause' in an enforcement proceeding that his wife has been living in adultery since the date of the order. The decision in Sangavva Gulappa v. Gulappa Kariyeppa, AIR 1942 Bom, 258 has been followed by many of the High Courts except the Allahabad High Court in Ram Kishore v. Bimla Devi relied upon by Mr. Kothavale, in the case before the Bombay High Court, Sangavva had obtained an order for maintenance against her husband who had failed to pay her the maintenance amount until she made an application to enforce the order under sub-section (3) of Section 488. The husband contended that she had been living in adultery with one Anya. After hearing the evidence on the point the Magistrate cancelled the order. In revision the Sessions Judge accepted the evidence as to wife's adultery but made an order for payment to Sangavva or arrears of maintenance upto the date of the cancellation of the order. In this proceeding we are not concerned with the question as to whether the order of cancellation takes effect retrospectively so as to disentitle the wife even to the arrears that had fallen due upto that date or takes effect only from the date of its cancellation.

(11) The view taken by the Bombay High Court in Sangavva's Case, AIR 1942 Bom 258 has also found favour with the High Court of Andhra Pradesh in Rukminibai v. Suraj Bhan Singh, . In that case it was contended that the words 'sufficient cause' occurring in sub-section (3) contemplated such cases as of divorce or of the passing of the order but that the plea of adultery prior to the order of payment of maintenance was not available under it. It was held, however, that when the husband comes forward with the allegation that subsequent to the passing of the order the wife has committed adulterous acts and has been leading an unchaste life, the same could be enquired into and that sub-section (5) envisages such a contention and does not impose a liability on the husband to file a separate petition for cancellation of the order. His Lordship's attention was drawn to the decision of the Allahabad High Court in which has taken a contrary view and has been relied upon by the learned Advocate for the respondent. His Lordship observed:

(14) In the view that I have taken of the plain meaning of sub-secs. (3), (4) and (5) of Section 488 and the concensus of the decision of the majority of High Courts cited before me, I am of the opinion that it is open to the husband to plead and prove during the proceeding for enforcement of the order for maintenance, that the wife is living adultery since the date of the order. I accordingly accept the reference, quash the order passed by the Magistrate and remit the proceedings back to him for disposal according to law after recording such evidence as the parties may lead in respect of the contention taken by the husband.