1. The plaintiff sues for a declaration that he is not bound to provide maintenance for his wife. The defendant has been since 1903 living in her parents' house, and in October 1907, a little less than a year before the suit, she gave birth in that house to a child which is found by the Courts below to be illegitimate, her husband having had no access to her. She has, it is stated, offered to return to her husband's house, but he, we are informed by his Vakil, is unwilling to receive her.
2. The second issue framed by the District Munsif is, whether the defendant lives in adultery and the finding on that issue is in the affirmative and is accepted by the Subordinate Judge. But we find ourselves unable to accept this finding, because the judgment of the District Munsif shows that it is based only upon the evidence that the plaintiff is not the father of the defendant's child. There is other evidence in the case, hut the District Munsif seems to have thought it unnecessary to consider it, and the Subordinate Judge does not refer to it, and though the Courts may have been entitled in the circumstances to draw from the mere fact that the defendant has given birth to an illegitimate child the conclusion that she was at the time of the suit living in adultery, neither of them deals with the matter in this way : both seem to consider that the defendant having been guilty of adultery once may be held, without further evidence, to be living in adultery. That is not so, and we cannot accept the finding as it stands.
3. As to the law, it is contended that the plaintiff is not bound to maintain his, wife if she has been unchaste. In Kandasami Pillai v. Murugammal 19 M. 6. Subramania Aiyer, J., formulates a rule which he says may be safely laid down even in the case of a wife, that no maintenance should be awarded if it appears that about the time of the litigation the woman persists in a vicious course of life.
4. The question has been very fully discussed in Prami v. Mahadevi 5 Ind. Cas. 960 : 34 B. 278 : 12 Bom.L.R. 136, mainly with reference to the text of Yagnavalkya and the Mitakshara Commentary thereon.
5. It is there shown that, according to the Mitakshara, even in the cases where the sins of the woman are so great as to justify her abandonment' by her husband, she is to be abandoned only for the purpose of conjugal relations and religious ceremonies, she is still to be fed and (sic) and retained under her husband's control, but is to be supplied only with the bare necessaries and to be kept in a place apart.
6. We see no reason why we should not accept this exposition of Hindu Law on the subject.
7. We were referred to certain texts of Manu as suggesting that a husband is entitled to cast off entirely an unchaste wife, but these texts do not directly lay down this rule, and we prefer to accept the rule which is discussed and laid down in Mitakshara and has been accepted as the law by the learned Judge in the Bombay High Court.
8. Taking the view, so far as it is consistent with Kandaswami Pillai v. Murugammal 19 M. 6, the plaintiff will be entitled to the declaration he seeks only if it is found that at the time of the suit the defendant was living in adultery and we must, in order to decide this, ask the District Judge for a revised finding on the 2nd issue on the evidence on record.
9. The finding should be submitted in six weeks and seven days will be allowed for filing objections.
10. This second appeal and the memorandum of objections filed by the respondent coming on for final hearing, after the return of the finding of the lower Appellate Court that it was not proved that at the time of the suit she was living in adultery upon the issue referred by this Court for trial, the Court delivered the following
11. We accept the finding and reverse the decrees of both the Courts below and dismiss the suit with costs in all Courts.