1. This is a Criminal Revision Case filed against the order made by the learned Chief Presidency Magistrate Egmore, in an application preferred under Section 488, Criminal Procedure Code in M. P. No. 1099 of 1951 involving an important question of interpretation of the words 'living in adultery'.
2. The facts are--The petitioner Akilandammal is the lawfully wedded wife of the respondent M. Kanniappati. They belong to the scheduled caste. This Kanniappan was a Member of the previous Legislative Assembly. In the recent elections also he tried but failed. This Kanniappan was a detenu during the Civil disobedience movement. While he was in detention this Kanniappan had directed his wife Akilandammal to live with his mother at No. 68 Kalathi Appu Mudali Street, Choolai, Madras. The dependents of these detenus were being supported by Government. In this case under the instructions of this Kanniappan the wife Akilandammal was being given a maintenance of Rs. 15/- p. m. for two years. On this respondent coming back from Jail in 1944 he found that his wife had not been living with his mother. On enquiries he found that this Akilandammal had been living in adultery with Kapali and Venkatesa Raju alternatively. Therefore, this Kanniappan has not been maintaining her though there is evidence that he is possessed of sufficient means to do so. He is not exactly employed how but owns a house bearing No. 78, Kalathi Appu Mudali Street, fetching a rent of Rs. 50/- p. m. This Kanniappan also as a political sufferer was allotted 10 acres of land of which he has got possession of 2 1/2 acres of wet lands in Ponneri. He has also invested Rs. 500/- in a hotel at Saidapet, which has a daily sale of Rs. 40/-. He had also received a purse of Rs. 6,000/- from the handloom weavers whose Satyagrah, he organized and led. It is in these circumstances that the petitioner Akilandammal filed this petition for maintenance under Section 488, Criminal Procedure Code, The defence of Kanniappan for not being liable to maintain his wife was that she has been living in adultery.
3. The learned Chief Presidency Magistrate made a proper approach to the appreciation of the evidence, regarding adultery. As pointed out by Pandrang Row J. in -- 'Kista Pillai v. Amirth-ammal', AIR 1938 Mad 833 (A) followed by Soma-sundaram J., in -- 'Subbayamma v. Venkata Rao', AIR 1954 Mad 90 (B), where the husband made allegations, as in this case, that the wife was living in adultery and made that his defence to refuse the claim of the wife for maintenance the husband was made to begin the case and let in evidence of unchastity and the wife was allowed to rebut it. Then in regard to proof of adultery the learned Magistrate has rightly Insisted that there must be clear proof of adultery and that it is not rested upon mere suspicion as laid down in -- 'Sheikh Issake v. Biyyamunni Ummah', 2 Weir 647 (C), -- 'Empress v. Nandan', 1881 All WN 37 (D) and -- 'Jodhan Shau v. Mt. Kulwanti Kuer', : AIR1948Pat285 (E). The learned Magistrate should however bear in mind in regard to the quantum of evidence to prove adultery that though tittle-tattle and bazaar gossip will not do, direct evidence will not often be possible and that the proof which he requires is that which is set down in Section 3, Indian Evidence Act viz., that after considering the matters before it the Court either believes that adultery had been committed or considers that its factum was so probable that a prudent man ought under the circumstances of the instant case to act upon the supposition that adultery existed. The learned Chief Presidency Magistrate has in the instant case set up a standard of proof which is far in excess of the requirements of Section 3 of the Indian Evidence Act and which standard of proof is Incapable of normal adduction. I do not further develop this point as I am remanding the case and I do not wish to embarrass the Chief Presidency Magistrate in his re-appraisal of the evidence in disposing of the case beyond hoping that he would bear in mind these observations. The learned Magistrate has really rested his conclusion for granting maintenance in this case on an interpretation of the words 'living in adultery' which requires careful examination and which will be my endeavour in the next succeeding paragraphs.
4. In order to construe the term 'living in adultery' properly and apply it to the facts of each case we must bear in mind the following factors.
Chapter XXXVI of the Code of Criminal Procedure relating to maintenance of wives and children is out of place in the Code of Criminal Procedure and it is here inserted because corresponding provisions were placed in the Codes of 1861 and 1872. Sir James Fitzsjames Stephen thinks that this Chapter should be placed in Part IV relating to prevention of offences, as he says it is a mode of preventing vagrancy or at least preventing its consequences. Unfortunately, though vagrancy is an offence in England, it is not and never has been an offence in India: Whitley Stokes' Anglo Indian Codes, Volume II, page 29. But it is clear however from the decision in - 'Parappati Chinna v. Shankunni Menon', AIR 1919 Mad 193 (F), that the object of including the maintenance section in the Code could only have been the prevention of destitution on public grounds; that it should only be applied in cases where in the absence of these provisions or the more cumbersome process of civil law the wife or children would be destitute.
The object is not to punish a husband or a parent for his past neglect but to prevent vagrancy by compelling those who could do so to support those who are themselves unable to do so and have a moral claim to be supported. See -- 'In the Petition of Shaik Fakrudin', 9 Bom 40 (G) and -- 'In re Gulabdas Bhaidas', 16 Bom 269 (H). That is why the fact that the wife has separate or independent means of support has always been considered to be an element which might be taken into consideration in fixing the quantum of maintenance paid to the wife: -- 'Narasimha v. Ran-ganthayammal', AIR 1947 Mad 304 (I). That is why also a healthy and able-bodied husband has always been construed to have the means to support his wife or child which includes capacity to earn money as has been laid down in -- 'Emperor v. Sardar Muhammad', AIR 1935 Lah 758 (J); --'Me Tha v. Nga San E', 13 Cri LJ 162 (K) and -- 'In re Kandasamy Chetty', AIR 1926 Mad 346 (L) notwithstanding the fact that the husband is an insolvent: -- 'Mahomed Hussein Abdul Kadar v. Emperor', AIR 1940 Bom 344 (M); --'Shyama Charan v. Mt. Anguri Devi' : AIR1938All253 . 'In re Mahomedali Methabhai', AIR 1930 Bom 144 (O) or that he is a professional beggar: -- 'Boya Kondamma v. Boya Kon-dalya', 2 Weir 616 (P); or that he is still young (19 years old) and unemployed -- 'In re Randa-swamy Chetty', AIR 1926 Mad 346 (L) or he is yet a minor and at school or that he is indebted:
-- 'Valliammal Animal v. Dharmalinga' : AIR1941Mad762 or that he has renounced the world and become a sadhu or a monk: -- 'Muni Kanti Vijayaji v. Emperor', AIR 1932 Bom 285 (R) and -- 'Tin Maimg v. Ma Hmin', AIR 1933 Rang 138 (S). It is on this principle that Newsam J. held in -- 'Lakshmi Ambalam v. Andi Ammal', AIR 1638 Mad 66 (T) that a husband is absolved from the obligation to maintain his wife when his wife has a 'de facto' protector, i.e. with whom she lives and by whom she is being maintained as if she were his wife. The obligation of an husband to maintain his wife arose 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. No woman can fairly claim a right to be kept by two men. Thus, the approach to Section 488, Criminal Procedure Code is the relieving of destitution.
The term 'living in adultery' has been the subject matter of several decisions. The word 'adultery' in Section 488 was sought to be used in -- 'Queen Empress v. Mannath Achari', 17 Mad 260 (U) by Muthuswami Ayyar J. in the sense of Section 497 Indian Penal Code, by virtue of Section 4 of the Criminal Procedure Code which directs that 'all words and expression used herein and defined in the Indian Penal Code & not hereinbefore defined shall be deemed to have the meanings respectively attributed to them by that Code.'
Best J. who sat with Muthuswami Ayyar J. doubted the propriety of this interpretation but held that in the face of Section 4 he had no option but to concur with Muthuswami Ayyar J. This decision was overruled by the Pull Bench of the Madras High Court in -- 'Gandapalli Appalamma v. Gandapalli Yellayya', 20 Mad 470 (V) and it was held that it would be wrong to limit the meaning of the word 'adultery' to the very limited definition of that word in Section 497, Indian Penal Code, and that the term 'adultery' should be understood in the light of the social idea of the community as being a serious breach of matrimonial tie. In order to understand the term 'living in adultery' which is used in this' section it has to be borne in mind that the section does not speak of an act of adultery but of living in adultery. This term has been held in a consensus of decision as connoting more than a solitary lapse from virtue.
In 'AIR 1938 Mad 833 (A)' it was held that the clear implication of the words 'living in adultery' used by the Legislature in Section 488, Criminal Procedure Code was that unless the wife was actually living in adultery at or about the time of the application she was not disentitled to obtain maintenance. It was nowhere stated in this section and there is no need to introduce additional words therein that living in adultery must be in the house of the adulterer. The words 'living in adultery' are merely indication of the principle that occasional lapses from virtue are not a sufficient reason for refusing maintenance-Continuous adulterous conduct is what is meant by living in adultery. The question therefore for the Magistrate to decide in such a case is whether there had been such an adulterous conduct on the part of the wife 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 and liberal manner. 'In Ma Thein v. Maung Mya Khin', AIR 1937 Rang 67 (W), the word 'live' in the term 'living in adultery' was said to convey the idea of continuance and consequently the phrase 'living in adultery' referred to a course of guilty conduct and not a single lapse from virtue.
This was also the ratio in -- 'Ma Mya Khin v. N. L. Godenho', AIR 1938 Rang 446 (X) where the words 'living in adultery' in Section 488 (5) were held to denote a continuous course of conduct and not isolated acts of immorality. 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, which means that she must be living in a state of quasi-permanent union with the man with whom she is committing adultery. The words used are not 'committing adultery' and there is clearly a great distinction between committing adultery and living In adultery. In other words the ratio of all these cases is that a solitary lapse from virtue is distinguished from contumacious immoral conduct should not be the ground for denying maintenance. That is why in -- 'AIR 1937 Rang 67 (CW)' it was held that the fact that a child was begotten when the husband could not get access to the wife showed that the wire must have been guilty of adultery on more than one occasion and therefore she was not entitled to maintenance apparently on the presumption that it is extremely rare that conception happens after one solitary intercourse. In -- 'Kallu v. Kounsilia', 26 All 326 (Y) wherein the entire case-law has been discussed, the earlier decisions -- '1881 All WN 37 (D)', in the petition of Kashi Sheodiala -- '1881 All WN 62 (Ya)'; 'Empress v. Daulat', 1881 All WN 113 (Yb), are referred to and relied upon it was held that giving birth to an illegitimate child two years prior to the wife's application does not deprive her of a right if at the time of application she was leading a chaste and respectable life. This decision was followed and approved by Benson and Wallis JJ. in -- 'Patala Atchamma v. Patala Mahalakshmi', 30 Mad 332 (Z). Similar ratio is to be found in -- 'Jatindra Nath Mohan v. Couri Bala Devi' : AIR1925Cal794 , in --'In re Fulchand Maganalal', : AIR1928Bom59 (22); -- 'Mt. Paiki v. Vishavanatha', 9 Cri LJ 390 (Z3) and -- 'Gopal Deo v. Ratni' . In a case reported in -- 'In re Shivram', 1890 Rat Un Cri C 506 (Bom) (Z4A), where a wife was found to have deserted her husband many years prior and led a life of adultery and had not attempted to seek her husband's pardon for her past misconduct, it was held that the wife was not entitled to maintenance merely because she was not living in adultery at the time of making an application for maintenance.
In fact even in Hindu law the wife's right of maintenance is governed by the same considerations. Thus when a wile leaves her home for the purpose of unchastity and persists in following a vicious course of life, she cannot claim to be maintained or to be taken back: -- 'Debi Saran v. Daulata Shukkhain', AIR 1917 All 86 (Z5); --'Subhayya v. Bhayani', AIR 1914 Mad 665 (Z6) (per Sankaran Nair and Miller JJ. following --'Kandasami Pillai v. Murugammal', 19 Mad 6 (Z7) and -- 'Parami v. Mahadevi', 34 Bom 278 (Z8); -- '19 Mad 6 (Z7)'; -- 'Jeeva Ammal v. Ranganatha Mudaliar', AIR 1939 Mad 788 (Z9), following -- 'Ch. Naga Lakshmamma v. Visva-natha Sastri', 23 Mad LJ 289 (Z10); -- 'Kuppam-mal v. Thangamuthu Pandaram' : AIR1944Mad426 , 'Mt. Zuli v. Gopalla Tukaram', AIR 1946 Nag 375 (Z12). But if the facts found are that she was guilty of a single act of infidelity but subsequently she has maintained a pure and unsullied life for 20 years before suit, the wife is entitled to reduced maintenance from her husband -- 'Ananthanarayana v. Sharadamma', 49 Mys HCR 235 (Z13). Thus, mere past misconduct and that too of an occasional lapse from virtue does not disentitle the wife from getting maintenance.
But it does not follow that whenever the case of a wife does not strictly fall within the meaning of the words 'is living in adultery' she will be lentitled to maintenance. The section in the opening clause uses the word 'may' as distinguished from 'shall' which shows that the Magistrate has discretion to decide in what cases the award of maintenance may properly be made. No doubt the discretion must be exercised judicially and reasonably and not capriciously -- 'Ponnayee v. Peria Moophan', 31 Mad 185 (Z14); see also -- '20 Mad 470 (V) and -- 'Yesu Bai v. Parasram', : AIR1933Bom21 (Z15). The Magistrate therefore may in his discretion refuse to grant an allowance where in spite of absence of proof of living in adultery as construed above there exists circumstances which justify such refusal. The following illustrations may be pertinent. A wife is proved guilty of adultery with a low caste man which. adultery has led her expulsion from caste. It is therefore rendered impossible for the husband. to take the wife without himself losing caste. Though this may not be a case of the wife 'living in adultery' yet under the circumstances an order refusing maintenance will not be wrong as laid down in -- '31 Mad 185 (Z14); see also -- 'Ram-Autar v. Mt. Raghurai', AIR 1926 Oudh 604 (Z16) where the wife had deserted her husband and at the time of her application was pregnant by adulterous intercourse with a low caste man, maintenance was refused.
But different would be the case where for Instance a wife had been excommunicated for rape on her by a low caste man and in such a case maintenance could not be refused as was the case in -- ' : AIR1933Bom21 (Z15)'. Then if the wife deserts her husband for several years and is also guilty of adultery and she makes no attempt to obtain the pardon of her husband for her misconduct the Court can refuse to grant maintenance to such a wife even though at the time of her application she may not be living in adultery: -- '1890 Rat Un Cri C 506 (Bom) (Z4A)'. There may be cases where by reason of infidelity the wife might have contacted venereal disease and not caught it from her husband. In such a case It would not be unreasonable to refuse maintenance because it will be noticed that under Section 488 maintenance can be granted only if it is found that the offer of the husband to maintain his wife is not found to be bona fide. It is only when that offer is found to be not bona fide maintenance can be granted. See -- 'In re Sama Jetha', AIR 1930 Bom 348 (Z17); - 'Atru V. Mt. Mahon', AIR 1925 Lah 142 (Z18); - 'Balock Khan v. Zainib Bibi', AIR 1931 Lah 561 (Z19); -- 'Pritam Sing v. Mt. Basant Kaur', AIR 1926 Lah 353 (Z20); -- 'Kadia Kalian Pitam-ber v. Kadiani Shamoo Ramji', 2 Cri LJ 249 (Kathi) (Z21); -- 'Decruz b. Decruz', AIR 1938 Rang 25 (Z22); -- Kaluram v. Emperor', AIR 1932 Nag 183 (Z23) and --'Sundarammal v. Palaniandi' : AIR1940Mad292 . It is obvious that in such a case a wife, being infected with veneral disease by reason of her immorality, could not be foisted upon the husband and he be made to share his bed with her. It has been held by Panchapakesa Ayyar J. in -- 'Appayyamma v. Subba Rao', AIR 1948 Mad 101 (Z25) that it is cruel on the part of the husband, who has veneral disease, to insist upon his wife to share his bed and it is a good ground for the wife's refusal to live with her husband and by the same token it would be Just ground for the husband not to take back his wife or maintain her. other instances of like nature may easily occur to one's mind and it is unnecessary to multiply such instances. It is enough to point out that the Court may in its discretion refuse to grant an allowance in case where, apart from the fact that living in adultery in the sense of a course of continuous adulterous conduct has not been proved, there may exist circumstances which would justify such refusal.
On an analysis of the case-law & the propositions deducible therefrom the conclusion of the learned Chief Presidency Magistrate granting maintenance on the ground that though the adulterous conduct on the part of the petitioner has been proved'it has not been further provided that she was living in adultery at the time of the petition, cannot be upheld.
5. On this conclusion I do not wish to proceed further and dispose of the matter myself because it is very possible that on account of the view of the law which the learned Chief Presidency Magistrate had taken both parties had not come to grips on the points which have got to be proved and rebutted in regard to the award of and withholding of maintenance and that they may also like to adduce some more evidence on this point to clinch their contentions one way or the other.
6. Therefore the order of the Lower Court is set aside and the learned Chief Presidency Magistrate is directed to proceed with further enquiry of this case in the light of the observations made above and dispose of it according to law.