Arthur Collins, Kt. C.J.
1. I think it would be wrong to limit the meaning of the word, 'adultery' in Section 488, Criminal Procedure Code, to the very limited definition of the word in S, 497 of the Penal Code. Adultery is a crime under that section that can only be committed by a man having sexual intercourse with the wife of another without the consent or connivance of the husband of that wife. Section 488 of the Criminal Procedure Code provides for the maintenance of the wife and enacts that a Magistrate may make an order of maintenance in favour of the wife, even though the husband offers to maintain his wife on condition of her living with him if the Magistrate is satisfied that the husband is living in adultery. The term adultery is used in that section in the ordinary sense, that is, a married man having sexual intercourse with a woman who is not his wife. It appears to me that this construction is not affected by the last words of Section 4 of the Criminal Procedure Code, but is consistent with it. It is clear that a different intention appears from the subject or context--See the first part of Section 4.
2. A difficulty must always arise in deciding in what cases the adultery of the husband is sufficient cause for the wife to claim maintenance. Amongst the Hindu community concubinage is recognized, and it is possible for concubines to have a certain status. If, therefore, a husband keeps a concubine in a house apart from his wife, it is doubtful if such an act alone would entitle the wife to separate maintenance; but if he kept such concubine in the same house as his wife lived in and against her wishes or in such a manner as to offend the self-respect of his wife, in my opinion that would entitle the wife to separate maintenance under Section 488, Criminal Procedure Code.
3. I answer the question referred to the Full Bench in the affirmative.
4. I have nothing to add to the observations (a) already made by me about the applicability of the Penal Code definition of 'adultery.' The solution of the question what conduct on the part of the husband amounts to 'living in adultery'. within the meaning of the Criminal Procedure Code is, however, not much advanced by the conclusion that the Penal Code definition cannot be applied. The words point to a continuous course of conduct, and not to isolated acts of immorality. But conduct of this sort, which according to Western notions would be condemned as a breach of the marital obligation, is not so condemned either by Hindus or by Muhammadans. No doubt, the right of maintenance enforceable under the Procedure Code is a right which exists independently of the personal law of the parties. The provision is analogous to that made by the English poor law under which children who have no common law right to maintenance at their father's hands, may claim it from them before a Magistrate. (See Bazeley v. Forder I.L.R., 17 M., 260
5. The circumstance, however, that the right rests on statute and not personal law does not, I think, preclude a consideration of the usages of the particular community for the purpose of determining the meaning of the term ' adultery.' I cannot conceive that it was intended to apply the term to conduct considered by the community to which the parties belong as innocent from a matrimonial point, of view. Subject to these observations on the general question, I am of opinion that the question referred must be answered in the affirmative.
Subrahmania Aiyar J.
6. Adultery according to the Penal Code is an act of which a man alone can be guilty. It is an offence committed by a third person against a husband in respect of his wife. If, as was held in Queen Empress v, Mannathachari'2 this limited meaning be adopted in construing the term adultery in Section 488 of the Criminal Procedure Code, it would follow that the husband could not properly be charged with adultery in a maintenance case, unless all the conditions of Section 497 I. P, C, are Sessions Judge's view were correct, it would follow that the husband could not properly be charged with adultery in a maintenance case, unless all the conditions of S.497 of the Penal Code, including absence of consent or connivance on the part of the other husband, could be established. This is to my mind absurd. Comparing Section 497 of the Penal Code and Section 488 of the Criminal Procedure Code, I think we are entitled to say that,' while in the former adultery of one species only is dealt with in. the latter adultery in the sense of a breach by either., party of the matrimonial tie was intended. I would therefore decline to interfere complied with. Such, however, could not possible have been the intention of the legislature. For, what difference does it make to the wife whom the husband has neglected or refused to maintain, whether the woman with whom he is living in adultery is a married woman or not, and, if the woman be married,' whether the1 woman's husband connives at the adultery or not? So far as the wife is concerned, her greivance is all the same. Therefore, while in Section 497, Indian Penal Code, adultery of one specific description only is dealt with, it is clear that in Section 488 of the Criminal Procedure Code adultery is used in the wider and ordinary sense of voluntary sexual connection between either of the parties to the marriage and some one, married or single, of the opposite sex other than the offender's own spouse. This construction is not inconsistent with any part of the interpretation cause, Section 4 of the Criminal Procedure Code referred to in Queen-Empress vMannath-achari.. For, though the concluding paragraph of that section says that all words and expressions used in the Criminal Procedure Code and defined in the Indian Penal Code, but not defined in the previous part of Section 4, should be deemed to have the meanings respectively attributed to them by the Penal Code, yet. this provision must, in reason, be held to be governed by the qualification laid down in the opening sentence of the section, viz., ' Unless a different, intention appears from the subject or context. ' Now looking to the context, a different intention cannot but be inferred, considering that the offence of, adultery under Section 497 of the Indian Penal Code, as already observed, is one against the husband, whereas under Section 488 of the Criminal Procedure Code, the term
cludes cases where the wrong done is to the wife. And notwithstanding that the concluding paragraph of Section 4 is separated by a full stop from that part of the section which contains the qualifying words 'Unless, Ac, &c;,' it'is difficult to believe that the framers of the section intended that that paragraph was not to be taken subject to the qualification specified in the beginning of the section. To the extent stated above, therefore, the conclusion arrived at in Queen-Einpressv. Mannathachari cannot be supported. But it should not be understood that the ruling in Criminal Revision Case No. 57 of 1884 referred and relied on by Muthusavii Aiyar, J. in that case is dissented from. In. determining in cases like the present whether the cause shown by the wife for refusing to live with husband is good and reasonable, it is but just that the Magistrate should take into consideration the social habits of the particular community to which the parties belong. If that community (as is the case with Hindus) does not completely disapprove of concubinage and tolerates it so far as to give kept women some status and rights I.L.E., 12 B., 26 the fact that the husband keeps a concubine ought not by itself entitle the wife to claim separate main; tenance. The question in each case will be whether the conduct of the husband is such as the wife consistently with self-respect and due regard to her position as wife can live in the house of the husband. If this is possible and the husband is willing to receive her, the Magistrate may refuse to order separate maintenance. I concur, therefore, in answering the question in the affirmative.
7. I have no doubt but that the question proposed must be answered in the affirmative. The concluding words, no doubt, of Section 4 of Criminal Procedure Code enact that any word used but not defined in that Code shall de deemed to have the meaning attributed to it in the Indian Penal Code, but this provision is subject to the opening words of Section 4 which say, ' Unless a different intention appears from the subject and context'. This limitation seems to have been overlooked by the learned Judges who decided the case of ' Queen-Empress v. Mannathachari I.L.R., 17 266.'
8. In the present case ' the subject and context' show that 'adultery' in Section 488, Criminal Procedure Code, has a much wider significance than adultery as defined in Section 497, I.P.C. In the Indian Penal Code it is an offence committed by a man against another man in respect of the wife of the latter. It is an offence which cannot be committed by. a woman; but the Criminal Procedure Code expressly contemplates adultery by a woman. For this reason if for no other, it is impossible to say that 'adultery' in Section 488, Criminal Procedure Code, has the limited meaning attributed to it in Section 497, Indian Penal Code. Again, ' adultery' under the Indian Penal Code is not committed by a man who has sexual intercourse with an unmarried woman or with a widow, or, with a married woman whose husband consents to it, but such considerations cannot in reason be held to make any difference in the ' adultery' contemplated by the Criminal Procedure Code. The 'adultery' there contemplated is, I think, adultery in the popular sense of the term, viz., a breach of the matrimonial tie by either party.
9. It would not, however, be understood to imply that a Magistrate ought, as a matter of course, to decree maintenance for a wife who refuses to live with her husband, solely because he has been guilty of an. isolated act or acts of adultery, or even because he keeps a concubine. The words 'living in adultery' imply a course of action more or less continuous. Moreover, a discretion is vested in the Magistrate. He may', not 'he shall,' make an order, &c.; He has, then, a discretion to consider, and be guided by the social ideas and feelings of the community to which the parties belong. Concubinage is, within certain limits, recognized both by Hindu and Mahomadan law, and is not in all circumstances reprobated by the public opinion of those communities. It follows that the keeping of a concubine is not necessarily, and in all circumstances, to be regarded by the Magistrate as a sufficient reason for a woman refusing to live with her husband, though it is equally clear that a Magistrate may in certain circumstances regard it as a sufficient reason to award separate maintenance to the wife. The Magistrate must be guided by all the facts and circumstances of each case and with due regard to the social ideas and customs of the community to which the parties belong. With these remarks, I would answer the reference in the affirmative.
10. These cases coming on for final hearing before a Division Bench (consisting of the Chief Justice and Mr. Justice Shephard), their Lordships in accordance with the opinions expressed by the Full Bench, declined to interfere with the orders of the Magistrates.