(1) These are two cases under Section 488 Criminal Procedure Code which have been referred to this Court by an Additional Sessions Judge with the recommendation that orders passed in two cases on the same date, the 28th of October 1960, by the Lady Magistrate should be quashed.
(2) Briefly the facts are that in one case the wife Shrimati Sudesh Kumari instituted proceedings against her husband Balraj Kumar and in the other case Shrimati Chander Wati instituted proceedings against her husband Vir Pal, the gist of the petitioner's case in each case being that her husband had ill-treated and turned her out and refused to maintain her. In each case the husband on his appearance put in a written reply to the petition in which liability for payment of maintenance was denied primarily on the ground that the wife was living an adulterous life, a man being named in each case as he person with whom the wife was alleged to be living in adultery.
(3) On these allegations by the husbands the learned Lady Magistrate adopted a similar procedure in each case and, instead of pursuing the ordinary course of ordering the wife to lead her evidence first in proof of her claim, she ordered that first of all the husband should lead his evidence regarding the alleged misconduct of the wife.
(4) This course appears to have been based on the brief judgment of Somasundaram, J. In R. Subbayamma v. R. Venkata Rao, 1954 Cri LJ 85: (AIR 1954 Mad 90) in which an earlier decision of Kista Pillai v. Amrithammal, AIR 1938 Mad 833, was followed. In the latter case it appears that one of the husband's defenses to the wife's maintenance petition was that she was living an adulterous life, but this allegation was only made by the last witness examined in the proceedings. The learned Judge thought that this had prejudiced the wife's case and he observed.
'My opinion is that in a case of claim for maintenance like this the respondent who puts forward a charge of living in adultery against the petitioner as his only defence to the claim for maintenance ought to begin his case and the petitioner against whom this charge is made ought to have an opportunity of a adducing rebutting evidence.' In the circumstances he remanded the case for additional evidence of both parties directing that the wife should have the last word. His remarks were merely repeated in the other case.
(5) I am inclined to agree with the view of the learned additional Sessions Judge that this decision ought not to be regarded as setting a standard practice that, whenever in maintenance proceedings a husband raises the defence of adultery on the part of the wife, he should be made to lead his evidence first. The general principle is that it is for the wife to produce what evidence she has in support of he case and to establish that she has a good case, and in the present cases the allegation of adultery is not the only ground on which the husbands are resisting the petition. I therefore agree with the recommendation that the wives in the present cases should lead their evidence first and quash the orders of the learned lady Magistrate directing otherwise with the further direction that, if necessary, in the interests of justice the wives may be permitted to lead further evidence in rebuttal of the evidence led by the husbands in support of their allegation of adultery. I understand that the 22nd of January 1962 is already fixed for hearing in the lower court and therefore there is no need for me to give any direction regarding a date on which the parties are to appear.
(6) Reference allowed.