# 2 92 BHUPINDER SINGH v. DALJIT KAUR

- **Citation:** [1979] 2 S.C.R. 292
- **Court:** Supreme Court of India
- **Decided:** 1978-11-13
- **Bench:** V. R. Krishna Iyer, P. N. Shinghal, A. P. Sen
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2-92-bhupinder-singh-v-daljit-kaur-7512
- **Pages:** 4

## Headnote

Criminal Procedure Code, 1973, Section 125 Scope of.
The respondent obtained an ex parte maintenance award for a sum of lls.
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 re5pondent praying that her
application for maintenance be dismissed and the executiou 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recovery of maintenance be withdrawn.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, :.he proceeded to enforce the order for maintenance. The petitioner resisted the application on the ground that resumption
of cohabitation, after the orginal 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 is a provision to protect the weaker
E
of the tv.'o parties, namely, the neglected wife. If an order for maintenance
bas 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
,I(
appropriate proceedings.
But until the original order for maintenance is modi·
fied or cancelled by a higher oourt or is varied or vacated in terms of section
"""
125(4) or (5) or section 127, its validity survives. It is enforceable and no
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plea that there has been cohabitation in the interregnum or that there has
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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 Magistra.te will execute the order for
maintenance [295 Bl
Fazal Din v. Mt. Fati1na, A.LR. 1932 Lahore P. 115; appfoved.
Natesan Pillai v. Jaya11111u111i, A.I.R. 1960 Madras, U. Po Chein v. Ma Sein
Mya. A.LR. 1931 Rangoon. 89, A.mpavalli Vurabhadrudu v. Ampavalli Gavira1111na 1955 A.1.R. (Crl.) p. 244; over-ruled.

## Text

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2 92
BHUPINDER SINGH
v.
DALJIT KAUR
November 13, 1978
[V. R. KRISHNA IYER, P. N. SHINGHAL AND A. P. SEN, JJ.J
Criminal Procedure Code, 1973, Section 125 Scope of.
The respondent obtained an ex parte maintenance award for a sum of lls.
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 re5pondent praying that her
application for maintenance be dismissed and the executiou 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, :.he proceeded to enforce the order for maintenance. The petitioner resisted the application on the ground that resumption
of cohabitation, after the orginal 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 is a provision to protect the weaker
E
of the tv.'o parties, namely, the neglected wife. If an order for maintenance
bas 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
,I(
appropriate proceedings.
But until the original order for maintenance is modi·
fied or cancelled by a higher oourt or is varied or vacated in terms of section
"""
125(4) or (5) or section 127, its validity survives. It is enforceable and no
:;-
F
plea that there has been cohabitation in the interregnum or that there has
G
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 Magistra.te will execute the order for
maintenance [295 Bl
Fazal Din v. Mt. Fati1na, A.LR. 1932 Lahore P. 115; appfoved.
Natesan Pillai v. Jaya11111u111i, A.I.R. 1960 Madras, U. Po Chein v. Ma Sein
Mya. A.LR. 1931 Rangoon. 89, A.mpavalli Vurabhadrudu v. Ampavalli Gavira1111na 1955 A.1.R. (Crl.) p. 244; over-ruled.
CRIMINAL APPELLATE JURISDICTION
fl
of 1978.
Review Petition
No. 95
K. R. Nagaraja, S. K. Mehta and P. N. Puri for the petitioner.
... -
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BHUPINDER v. DALJIT (Krishna Iyer, J.)
2 93
The Order of the Court was delivered by
KRISHNA IYER, J.-A short narrative of the facts is neces-
,sary
to
explore
and
explode
the submission
that a
subs1antial 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
1iled 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 petitioll 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,
·she 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
'fo 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.l.R.
1960 Madras 515. The holding in that case is that resumption of c~
.habitation 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
·an end to the order under S. 488 Cr. P. C.
If the wife sepa-
;rated :again from the husband, then she must file another petiA
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A
294
SUPREME COURT REPORTS
[1979] 2 S.C.R.
tion, a fresh cause of action, and obtain an order if she. satisfied the Court that there is sufficient reason to leave her huilband and that he neglected to maintain her."
-·
To the same efiect is the decision of the Andhra High Court reported
1
in 1955 Andhra Law Times Reports (Criminal) Page 244.
The heatl
B
note there read~ :
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c
"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.LR. 1931
Rangoon 89) as lends
support to this proposition.
A contrary position has found favour with the Lahore High Court
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reported in A.I.R. 1932 Lahore p. 115.
The facts of that case have
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close sinlilarity 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 compronlise, he may have recourse to such remedy in a
civil Court as may be open to him.
The crinlinal Court cannot 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 !ection 125 Cr!. P. C. R111St
be founded on a provii;ion 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•
Codo
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 proceedin!JI.
4
) ..
'!"
'
BJIUPINDER v. DALJIT (Krishna Iyer, l.)
2 95
But until the original order for maintenance is modified or cancelled by
a higher court or is varied or vacated in terms of ilection 125(4) or (5)
er section 12_7, its Ta!idity 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
B
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 C
which he may start to vacate or vary the order for maintenance.
S. R.
Petition dismissed.