1. This is a Rule calling upon the Chief Presidency Magistrate and upon the Opposite Party to show cause why the order specified in the petition should not be set aside.
2. It is said that the petitioner and the opposite party are husband and wife and that they have not been living together for nearly twenty years, and it is admitted that during that period the petitioner has been paying her a monthly sum of Es. 10 under an order under Section 488 of the Cr.P.C.
3. The petitioner's case is that the opposite party had been living in her father's house up till some time in December 1923 when she gave birth to an illegitimate child and was driven away by her brother who was living with her and her mother in. that house. The petitioner thereupon applied to the Court of the Chief Presidency Magistrate for, the cancellation of the maintenance order. The learned Magistrate, however, rejected the application. The Magistrate observed that though the child was illegitimate 'there is nothing further to show that the woman has been 'living in adultery,' which alone would entitle the petitioner to stop the maintenance.' He referred to the case of Kallu v. Kaunsilia 26 A. 326 : 1 A.L.J. 18 : A.W.N. (1904) 23 : 1 Cr.L.J. 84.
4. The learned Vakil for the petitioner has contended that when there is the undeniable fact of the woman being the mother of an illegitimate child and when other circumstances have been proved to show that she has been guilty of different acts of misconduct the learned Magistrate should have found that she was 'living in adultery' within the meaning of Section 488, Cr.P.C.
5. The learned Vakil who has appeared for the opposite party, on the other hand, contends that although the birth of this child may show an act of adultery it does not establish that the mother has been 'living in adultery' so as to make her amenable to the penalties laid down in Section 488, Clause (5).
6. The expression 'living in adultery' has been judicially interpreted more than once. In the case of Gantapalli Appalamma v. Gantapalli Tellayya 20 M. 470 : 2 Weir 643 : 7 M.L.J. 303 : 7 Ind. Dec. (N.S.) 333, (F.B.), Shephard, J., said: 'The words point to a continuous course of conduct, not to isolated acts of immorality.' In the case of Patala Atchamma v. Patala Mahalakshmi 30 M. 332 : 5 Cr.L.J. 359 : 17 M.L.J. 279 : 2 M.L.T. 166, the learned Judges refer with approval to this case as well as to the case of Kallu v. Kaunsilia 26 A. 326 : 1 A.L.J. 18 : A.W.N. (1904) 23 : 1 Cr.L.J. 84 and say: 'These words refer rather to a course of conduct, or at least to something more than a single lapse from virtue.'
7. We are of opinion that this is the proper and natural construction to be put upon the words and unless continuity of conduct is established, it cannot be inferred from a single act of adultery that the woman is 'living in adultery.' In the present case we think that although the woman has given birth to a child it was open to the Magistrate to find that, apart from that circumstance, she was not 'living in adultery,' and that we should consequently not interfere with his decision.
8. The Rule is accordingly discharged.
9. I agree.