K. Sadasivan, J.
1. This is a reference by the 1st Additional Sessions Judge of Trivandrum in M.C. 29/66 on the file of the Addl. First Class Magistrate, Trivandrum. That was a case instituted by a mother and 5 children for maintenance under Section 488 Criminal P.C. The learned Magistrate found that the mother is not entitled to maintenance since she is living in adultery. Even though the paternity of all the 5 children was admitted the counter-petitioner, maintenance was not awarded to the children also, as the Magistrate is of the view that the children are being maintained by the counter-petitioner himself. Learned Additional Sessions Judge has pointed out in his reference order that the view taken by the learned Magistrate is wrong in so far as the counter-petitioner cannot shirk his responsibility to-maintain the children on the plea that he is making occasional payments to them.
2. On a review of the position in all its details, I am persuaded to the conclusion that the petitioners have established a case for maintenance for all of them, i. e., for the wife and all the 5 children. In the matter of the wife, I am afraid the trial Magistrate as well as the Addl. Sessions Judge in revision, have taken a mistaken view of the expression 'living in adultery' used in Section 488 of the Code. Now that this Court is fully seized of the matter. I would think it proper to deal with all the-questions threadbare as if in a revision before this Court.
3. The learned trial Magistrate in entering the finding that the wife is living in adultery has relied mainly on two circumstances and they are:
(i) Exs. D-1 to D-5 letters, purporting to have been written by one Appukuttan Nair to the first petitioner-wife; and
(ii) An alleged enquiry by the authorities of the S.A.T. hospital on the misconduct of the first petitioner who was a sweeper attached to the hospital.
Appukuttan Nair is a cook attached to the hospital kitchen. The allegation brought forward by the counter-petitioner is that the first petitioner and this Appukuttan Nair were having illicit sexual contacts and it was in proof of such immoral conduct that the letters were produced by him in evidence. According to him, the letters were found in a box owned and possessed by the first petitioner. The allegation was emphatically denied by her. There is no knowing whether the letters were, in fact, written by Appukuttan Nair to the first petitioner. Appukuttan Nair was not cited and questioned. The counter-petitioner's relationship with the first petitioner was already strained due to the fact that the first petitioner's younger sister was impregnated by him. In such a background it is impossible to believe him when he says that the letters were found in the box belonging to the first petitioner.
4. On the second point, viz., that there was an enquiry in the S.A.T. hospital into the affairs of the first petitioner and Appukuttan Nair-both employees of the hospital -there is no evidence produced in Court. It is alleged that on the first occasion the enquiry was conducted by Dr. Kalyanikutty Amma Superintendent of the S.A.T. hospital and on the second occasion by Dr. Omana Mathew, the then Superintendent of the hospital. None of the details regarding the enquiry is before Court. All that resulted in the enquiry was a transfer for both the parties and from that it cannot be concluded that the finding recorded by the enquiry officer was something against the first petitioner. Oral evidence was also attempted but the witnesses examined except saying that Appukuttan Nair was seen by them sometimes in the first petitioner's house, have not gone farther even to create a suspicion in the mind of the Court that the first petitioner's associations with him are bad. It is on these inconclusive materials that the learned Magistrate has entered the finding that the first petitioner is living in adultery.
The learned Additional Sessions Judge dealing with the matter in revision, has also fallen into the same error and he has even gone farther in his condemnation of the woman. He would call her even a male 'hunter, To quote the learned Judge's own words:
It will appear from the records Exts. D-1 to D-7 as well as the oral evidence adduced in this case that the 1st petitioner is a male hunter and that she is not leading a chaste life.
This is a highly objectionable statement, to say the least. I do not know how the learned Judge could be justified in indulging himself in such a wholesale condemnation of a woman who ekes out her living as a menial attached to the hospital. The true point has been lost sight of by both the trial Magistrate as well as the revisional Judge.
It has been held in a series of decisions that the expression 'living in adultery' in Section 488 of the Code means something more than occasional lapses from virtue. In Ma Mya Khin v. Godenha AIR 1936 Rang 446, Dunkley, J. observed:
The words 'living in adultery' denote a continuous course of conduct as distinguished from isolated acts of immorality and mean that the woman must be living in a state of quasi permanent union with the man with whom she is committing adultery one or two lapses from virtue would be acts of adultery but would be quite insufficient to show that the woman was living in adultery. Words used are 'living in adultery' and not 'committed adultery'.
In the same strain are the pronouncements in Lakshmi Ambalam v. Andiammal AIR 1938 Mad 66 and Kista Pillai v. Amirthammal AIR 1938 Mad 833. In the former case AIR 1938 Mad 66, it was observed:
The principle, it seems to me, is that a husband is absolved from the obligation to maintain his wife when his wife has a de facto protector with whom she lives and by whom she is being maintained as if she were his wife. The obligation of a husband to maintain his wife arises from the anxiety of the legislature to protect deserted wives from the bitter necessity of earning a living by trading on their sex. That obligation however ceases when it has been voluntarily assumed by some man other than the -woman's husband.
And in the latter decision, AIR 1938 Mad 833, it was held that:
The words 'living in adultery' are merely indicative of the principle that occasional lapses from virtue are not sufficient reason for refusing maintenance.
It is clear from the above judicial pronouncements that 'living in adultery' means some thing different from leading an unchaste life. In the present case even if the alleged letters are believed and that the first petitioner had been moving friendly with Appukuttan Nair, she does not become disentitled to maintenance because the bar of 'living in adultery' is not established thereby. The learned Magistrate therefore, is clearly in error in having refused maintenance to the wife.
5. Now coming to the children, the order is unsustainable on the very face of it. The counter-petitioner, it is true, has cited witnesses to show that he is making occasional payments to the children and the eldest of the children has given evidence in the case to the effect that he is being occasionally paid by the counter-petitioner. Some driblets placed in the hands of the eldest child, who himself is only 12 years old, cannot be taken as payment to all the children and for all their needs. The order of the learned Magistrate has hence to be vacated in any event.
6. The counter-petitioner is a taxi driver and is also rendering services as a driver to Dr. C.K. Gopi of the Medical College Hospital, Trivandrum. The first petitioners case is that he is making, on the whole, a monthly income of Rs. 200. This was challenged by him; but he was not prepared to tell the Court what his actual income is. In the circumstances, Rs. 200, the estimate made by the first petitioner, may safely be accepted, as his monthly income. Judged from his own admission of payments o Rs. 1 or Rs. 2 daily to the eldest child he could be treated as financially sound enough to provide a monthly allotment in the least of Rs. 60 for all the 6 petitioners together. I would fix Rs. 10 for the first petitioner and Rs. 8 each for the children.
7. The order of the learned Magistrate is set aside and the petition for maintenance is allowed. The counter-petitioner (husband) is directed to pay maintenance at the above rate, viz., Rs. 10 per mensem for the first petitioner and Rs. 8 each, per mensem, for the children from the date of the petition. The reference will stand disposed of as above.