1. This revision petition raises an interesting point of law regarding the interpretation of the term 'is living in adultery' appearing in Clause (4) of Section 488 of the Criminal Procedure Code. The respondent filed petition No. C. Mis. 37 of 1955 in the Court of the First Class Magistrate, Civil Station, Bangalore, claiming maintenance from her husband under Section 488, Cr. P. C. The husband, viz., the present petitioner, contended that he was not bound to maintain her and that she had disentitled herself to any maintenance by reason of her infidelity to him inasmuch as on 9-5-55 she was found to be in criminal intimacy with one Raman.
The Magistrate came to the conclusion that adultery was proved on the part of the present respondent on two occasions. Relying on the rulings of certain High Courts, he further held that it does not amount to 'living in adultery' as contemplated under Section 488 of the Criminal Procedure Code. On 6-7-56 he awarded maintenance at Rs. 15 per month from the present petitioner to the respondent. Being aggrieved by this order, the present revision petition has been filed by the husband.
2. When the matter came up for hearing before Padmanabhiah, J., apparently his Lordship was not quite satisfied with the interpretations of the High Courts on which the learned Magistrate had relied. One of the reasons that appears to have weighed with his Lordship is that almost all the Judges who decided, those cases were 'English Judges whose notions and standards of morality may not be the same as ours'. He, therefore, thought it fit to refer the case to a Division Bench 'to have an authoritative ruling of this Court on this point'. The case has therefore come to be placed before a Division Bench.
3. Clause (4) of Section 488 of the Criminal Procedure Code provides:
'No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery.....'
The term 'living in adultery' appearing in this clause has been the subject-matter of decision of various High Courts. In re, Fulchand Maganlal AIR 1928 Bom 59 (A), it has been held:
'A single act of adultery does not necessarily amount to 'living in adultery' within the meaning of Clause (4) of Section 488 and will not justify a Magistrate in refusing maintenance, because the words living in adultery' refer to a course of conduct and mean something more than a single lapse from virtue.'
Although the judgment in this case was written by Fawceit, J,, Mirza, J. (who was an Indian), has endorsed that he holds the same opinion. It may be mentioned here that in comingto the above conclusion, their Lordships relied upon the observations of Justice Chandavarkar made in the case of Barami v. Mahadevi, ILR 34 Bom 278 (B). That was a case of maintenance under Hindu Law where Chandavarkar, J., observed:
'The general rule to be gathered from the texts is that a Hindu wife cannot be absolutely abandoned. If she is living an unchaste life, he is bound to keep her in the house under restraint and provide her with food and raiment just sufficient to support life.'
These are no doubt, considerations that are to be applied in the case of maintenance to be granted under the Hindu Law and not strictly those that are to be considered under the provisions of Section 488, Cr. P. C. The interpretations in the above case of Fulchand Maganlal (A), have been fully endorsed by Pandrang Row, J.. in Kista Pillai v. Amirthammal, AIR 1938 Mad 833 (C), where it is observed:
'The clear implication from the words used by the Legislature in Section 488 is that unless the wife is actually living in adultery at or about the time of the application she is not disentitled to obtain maintenance. It is nowhere said in the section, and there is no need to introduceadditional words therein, that living in adultery must be in the house of the adulteror. The words 'living in adultery' are merely indicative of the principle that occasional lapses from virtue are not a sufficient reason for refusing maintenance. Continued adulterous conduct is what is meant by 'living in adultery'.'
4. As early as in 1907 it was held by the Madras High Court in Patala Atchamma v. Patala Mahalakshmi, ILR 30 Mad 332 (D), that ''living in adultery' refers to a course of conduct and means something more than a single lapse from virtue.' The same interpretation has been given to that term 'living in adultery'in various subsequent decisions, e.g., Jatindra Mohan v. Gouri Bala : AIR1925Cal794 ; Ma Mya Khin v. N. L. Godenho, AIR 1936 Rang146 (F); and Lakshmi Ambalam v. Andiammal, AIR 1938 Mad 66 (G).
The said term has been explained more clearly by Ramaswami, J., in the case of Mahalingam Pillai v. Amsavalli, : (1956)2MLJ289 . This was, however, a case under the Madras Hindu (Bigamy Prevention and Divorce) Act and the Hindu Marriage Act. Section 13 of the latter Act provides that only living in adultery is a ground for dissolution of marriage. At p. 294, his Lordship observes:
'There is a distinction between 'committing adultery' and 'living in adultery'. Living in adultery means, following in a course of adulterous conduct more or less continuous; a single act of adultery cannot be considered as living in adultery. The words living in adultery'used in Sub-section (4) of Section 488, Criminal ProcedureCode, and Section 13 of Act XXV of 1955, are mere-ly an indication of the principle that occasional lapses from virtue are not a sufficient reason either for refusing maintenance under Section 488 of the Code of Criminal Procedure, or for granting divorce under Act XXV of 1955, as distinguished from judicial separation. The question, therefore, for Courts to decide is whether there had been such adulterous conduct at or about the time of the application, that is to say, shortly before or shortly after the application was made, interpreting the word 'shortly' in a reasonable manner.'
As against these rulings, no other case has been cited to us where any of the High Courts or the Supreme Court in India has taken a contrary view or has held that a single lapse or two on the part of a wife would disentitle her from claiming maintenance under Section 488 of the Criminal Procedure Code.
5. After a careful consideration of the law on the point, we are of opinion that it is not a stray act or two of adultery that disentitles a wife from claiming maintenance from her husband; but it is a course of continuous conduct on her part by which it can be called that she is living an adulterous life that takes away her right to claim the said maintenance. It is significant to note that the wording in Section 488, Clause (4) of the Criminal Procedure Code is not 'if she commits adultery' but 'if she is living in adultery'. To our mind, there is a certain amount of emphasis on the term 'living'. A mere lapse, whether it is one or two, and a return back to normal life cannot be said to be 'living in adultery'. If the lapse is continued and followed up by a further adulterous life, the woman can be said to be 'living in adultery'.
6. Turning to the facts of the present case we have heard the learned advocate for the petitioner at length. He has taken us through a number of letters alleged to have been written by the present respondent to her alleged lover Raman. The learned First Class Magistrate, after consideration of this evidence, has reached the conclusion that the evidence goes to establish two acts of adultery only. The learned advocate for the petitioner, however, wants us to reach the conclusion that the course of adulterous conduct on the part of the present respondent continued right from the date when her husband left Bangalore on Military Service on 25-11-54 to 9-5-55 when she was caught redhanded.
Firstly, this is a finding of fact on which we would be very slow to interfere. Even if we go into the question of evidence; we do not find that there is sufficient material to reach the conclusion which he wants us to reach. In our opinion, the conclusion arrived at by the Magistrate is correct. It establishes only two acts of adultery, the last being 9-5-55. The evidence in this case has been recorded in Court from 26-8-55 to 21-6-56.
No allegation has been made that after 9-5-55 till any date prior to 21-6-56, the present respondent betrayed any tendency of continuing or reviving her adulterous connection with her alleged paramour. Under such circumstances, what is proved is nothing more than two instances of lapses. The Magistrate has rightly held that she is not disentitled from getting maintenance. The petition is dismissed.
7. Petition dismissed.