060-NLR-NLR-V-39-SANTIAGO-v.-SANTIAGO.pdf
Santiago v. Santiago.
219
1937Present: Maartensz J.
SANTIAGO v SANTIAGO.657—P. C. Jaffna, 8,062.
Maintenance—Resumption of cohabitation—Order for maintenance notcancelled—Wife’s cl aim for arrears of maintenance.
An order for maintenance is not cancelled by the resumption ofcohabitation, and a wife is entitled to recover arrears of maintenance fora period during which the husband lived with her.
Kadiravail Wadivel v. Sandanam (30 N. L. R. 351) followed.
A N appeal from an order-of the Police Magistrate of Jaffna.
The appellant was ordered to pay the respondent, his wife, maintenanceat the rate of Rs. 30 per month. The appellant subsequently returnedto his wife and lived with her from February to November, 1936. Thewife claimed arrears of maintenance for the months of February, March,.April and May, during which the appellant lived with her.
Her application was allowed.
H. W. Thambiah (with him C. Renganathan), for appellant.—The parties:lived together after the order for maintenance. The legal consequenceis that the order becomes void and inoperative. Vide Sohoni (13th ed.)p. 1047, where the wife returns to the husband subsequent to the order, theorder becomes ineffectual subsequent to the date of such return. (1838)All. (W. N.) .217. If parties separate again, a fresh application for mainte-nance should be made. No claim, for maintenance can be made for aperiod parties lived together. Section 10 of the Ordinance says that ifthere is change of circumstances an order may be varied. But change ofcircumstances has been interpreted to be change of pecuniary circum-stances. (1889) Koch 24. Hence when parties live together the husbandcannot make an application to have the order cancelled or varied undersection 10 or any other section. Many circumstances make a maintenanceorder ..void ; for instance, death, insolvency, lunacy of the husband. Evenif the order does not become void, if it is in evidence that the husband. supported the wife then such support should Tie' taken to be in lieu of theorder for maintenance. Where the wife supports the husband as in this-
220
MAARTENSZ J.—Santiago v. Santiago.
case there is an implied waiver of her claim and she cannot be allowedto set it up later. A wife cannot claim past maintenance (Ranasinghe v.Peiris')
N. Kumarasingham (with him P. Navaratna Rajah), for applicant,respondent—Our Maintenance Ordinance is self-contained, and once anorder for maintenance is made under section 3 the only way in which theorder can be cancelled is indicated in section 6. See Kadiravail Wadivelv. Sandanam. * There is no provision of the law by which the orderbecomes inoperative by the parties living together. The legislature hasnot made any such provision. In England by the Summary JurisdictionSeparation and Maintenance Act of 1925, section 2 (2), there is provisionfor a cessor of the order for maintenance on the resumption of cohabitation.In India the law applicable is not the same as ours. There is direct localauthority for the proposition that the order for the payment of mainte-nance is not cancelled by the resumption of cohabitation. See KadiravailWadivel v. Sandanam (supra). As long as there is a finding of fact thatfor a period parties lived together the husband did not maintain the wife,the wife is entitled to recover arrears of maintenance. If parties wantedto have the order set aside on their resumption of cohabitation theycould have made a joint application. They have not done so.
Cur. adv. vult.
November 1', 1937. Maahtensz J.—
The appellant in this case was in August, 1935, ordered to pay therespondent, his wife, Rs. 30 a month for her maintenance. The paymentswere to be made from September 1, 1935.
The appellant subsequently returned to his wife and lived with her fromFebruary to November, 1936.
The questions for decision in this appeal are : —
Whether the appellant paid his wife maintenance for the months of
February, March, April and May ;
Whether he is in any event not liable to pay her maintenance
because he was living with his wife during that period.
The first question is one of fact and I am not prepared to dissent fromthe finding of the Magistrate that maintenance was not paid during themonths in question.
The appellant’s contention on the second question is that the order' directing him to pay his wife maintenance was impliedly annulled by hisresuming cohabitation with her. In support of this contention I wasreferred to a passage in Sohonifs commentary on the sections relating to.maintenance in the Indian Criminal Procedure Code. The authoritycited by Sohoni is not available and I am not prepared to adopt thisstatement of the law without examing the authority.
There is direct authority to the contrary in the Ceylon case of KadiravailWadivel v. Sandanam'. In that case a married woman obtained van order-for maintenance against her husband. Thereafter the parties came beforethe Court and it was recorded that they were .living together. Theyseparated again and the wife applied for the enforcement of the order for* 13 N. L. B. 21* (1929) 30 N. L. B. 331.
221
Appuhamy v. Mudiyatise.
maintenance in her favour. The husband contended that because heand his wife had lived together the order directing him to pay maintenancehad been cancelled.
It was held that the order for the payment of maintenance had notbeen cancelled by the resumption of cohabitation. I respectfully agreewith the ratio decidendi in that case and follow it.
1 accordingly hold that the order directing the appellant to paymaintenance is still in force and I dismiss the appeal with costs.
Affirmed.