Review Petition No 95 of 1978
KR Nagaraja SK Metha and PN 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 article 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her application for maintenance be dismissed and the execution proceedings for recovery of arrears of maintenance be withdrawn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The short question of law pressed before us is that the order for maintenance under section 125 of the Code is superseded by the subsequent living of the wife with the husband and is unavailable for enforcement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 AIR 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 section 488 Cr
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 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 AIR 1931 Rangoon 89 as lends support to this proposition
A contrary position has found favour with the Lahore High Court reported in AIR 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 section 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 1254 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
SR Petition dismissed


Summary:
The respondent obtained an ex parte maintenance award for a sum of Rs 250 pm from the Court of competent jurisdiction under Sec
125 Crl
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
PC 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 1254S 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 1254 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 vs Mt Fatima AIR 1932 Lahore P 115 approved
Natesan Pillai vs Jayammani AIR 1960 Madras U Po Chein vs Ma Sein Mya AIR 1931 Rangoon 89 Ampavalli Veerabhadrudu vs Ampavalli Gaviramma 1955 Al
R Crl p 244 over ruled