K.N. Mudaliyar, J.
1. The petitioner is the wife of the respondent. She is aged, about 22 and the respondent is aged about 27. The marriage between the petitioner and the respondent appears to have been solemnised in about July, 1967. According to the petitioner after living with the husband for nearly four months she was ill-treated cruelly and driven out from the respondent's house. She returned to her parental home and has been living there. Her further case is that the petitioner and her father went to the respondent's house and she was ready to live with him. But the respondent said that he did not want her.
2. It is the case of the respondent that the petitioner deserted the respondent. The respondent further maintains that the petitioner was having illicit intimacy with one Madiga Chinnavadu and he was even caught red-handed. But these suggestions based on the case of the respondent were refuted by the petitioner. The petitioner further states that the respondent beat her and ill-treated her and he wanted to marry a second wife. The respondent husband has been examined as D.W. 1. When he gave evidence on 13th November, 1968, he stated that an year ago his father-in-law took him for Nombu festival. Actually Deepavali falls on 1st November, 1967. The Nombu must be on the 2nd November, 1967. He alone went to the petitioner's house. His father-in-law stopped on the way. He went and sat near the house of the petitioner and called the petitioner's mother and asked her where the petitioner was. She replied that the petitioner had been to the backyard. The respondent says that when he went to the backyard he saw the petitioner and Chinnavadu lying together under the mango tree. D.Ws. 2 and 3 came behind him and saw that. He further claims that he beat Madiga Chinnavadu. Chinnavadu and Govindan, D.Ws. 2 and 3 beat Madiga Chinnavadu. He further claims that D.Ws. 2 and 3 alone saw the occurrence. He refutes the idea suggested against him of his marrying one Jaya. Of course, he says that he did not beat and drive out the petitioner. In regard to the adulterous conduct of the petitioner with Madiga Chinnavadu, he says that only on that date he saw the petitioner with Madiga Chinnavadu. He further describes that until he went near, the petitioner and Madiga Chinnavadu were together. There is a pathway near the petitioner's house and people will be using it till 9 p.m. He admits that none complained to him that the petitioner was leading an immoral life. Even this alleged occurrence is supposed to have taken place two days before the Nombu. On this evidence given by D.W. 1, I have no hesitation in holding his evidence is a tissue of lies. If really there is a pathway near the petitioner's house as admitted by D.W. 1 no woman would take risk to have illicit liaison with her paramour lying together on the ground at 9 p.m. People will not abruptly cease going to and fro in the pathway exactly at 9 p.m. in order to enable the petitioner and Madiga Chinnavadu to have their intimate embraces. I do not believe this piece of evidence. He has concocted this lame excuse from his imagination for the purpose of negativing her claim. What is surprising is that the respondent has no compunction in inventing this sordid story against his wife. D.W.2 is no other person than a relation of D.W. 1 who has married his cousin sister. In fact, D.W. 1 admits that his father performed the marriage of D.W. 2. D.W.2 may be related to the petitioner also. That D.W. 2 is also giving false evidence is clearly seen from the fact that the occurrence is stated to have taken place at 8 p.m. whereas according to D.W. 1 it was 9 p.m. Although D.Ws. 2 and 3 came behind him D.W. 2's evidence falsifies that. He claims that he chased and caught hold of him but he does not say that D.W. 1 beat Madiga Chinnavadu. D.W. 3 says in his chief examination that P.W. 2 called him when he was asleep. They went to their groundnut field. They saw Madiga Chinnavadu. Suspecting him to be a thief, they caught hold of him. The evidence of D.W. 3 brings about unabashed lies spoken to by D.Ws. 1 and 2. The evidence of D.Ws. 4 and 5 is worse than useless because it is all hearsay evidence which ought not to have been admitted by the Magistrate.
3. On 25th July, 1968, the petitioner appears to have issued notice to which the respondent replied on 30th July, 1968, attributing the petitioner's illicit intimacy with Madiga Chinnavadu on one night in Aiyipisi. This alleged act of intimacy is invented for the first time on 30th July, 1968. He never charged her with this adulterous conduct prior to 30th July, 1968. His conduct from 1st November, 1967 to 30th July, 1968, in not making a grievance of this supposed occurrence is proof of his capacity to invent such a palpable story against his wife, after a passage of nearly nine months.
4. I have no hesitation in holding that the evidence adduced by D.W. 1 the respondent herein is totally false and cannot be acted upon. The learned trial Magistrate erred in equating a single lapse alleged against the petitioner with the phrase ' living in adultery '. Pandrang Row, J., in Kista Pillai v. Amirthammal : AIR1938Mad833 , holds:
The clear implication from the words living in adultery in Section 488, Criminal Procedure Code, is that unless the wife is actually living in adultery at or about the time of the application, she is not disentitled to maintenance. 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'. The question therefore for a magistrate to decide is whether there had been such adulterous conduct on the part of the petitioner at or about time of the application.
5. Applying this test enjoined on the learned Magistrate, I am of the view that order of the trial Magistrate is totally erroneous and improper. The learned trial Magistrate ought to have known that in a case of claim for maintenance, 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 adducing rebutting evidence. (Vide Kista Pillai v. Amirthammal : AIR1938Mad833 , and Subbayamma v. Venkata Rao (1952) 2 M.L.J. 183 : (1952) M.W.N. 276 .
6. This is not a fit case where it ought to be remanded for fresh disposal according to law, for in my view, the evidence adduced by the respondent (D.W.1) is nothing but a tissue of lies which is wholly contradictory and mutually destructive and I consider that the order of the trial Magistrate ought to be set aside.
7. I direct the respondent to pay a monthly allowance of Rs. 50 with effect from the application of the petitioner, namely 5th August, 1968. I also further direct the respondent to pay a sum of Rs. 50 before the 15th of every calendar month. He is also directed to pay all the arrears of the maintenance accruing till the date of the disposal of this petition before the end of February, 1970. The revision petition is allowed.