Court: Madras High Court
Bench: JUSTICE S.R. Pandian
S.S. Manickam Vs. Arputha Bhavani Rajam On 21 February 1979
Law Point:
Wife loses her right to obtain maintenance as per strict letters of Section 125 of Cr.P.C, when she was leading adulterous life.
JUDGEMENT
1. By this revision petition, the respondent in M. C. No. 390 of 1975 on the file of the Judicial 1st Class Magistrate No. 1, Tirunelveli. challenges the order passed by the said Magistrate on 27-3-1976 holding that the first petitioner therein (respondent herein) is entitled to maintenance.
2. The brief facts leading to this revision petition are as follows : The respondent herein, Smt. Arpuda Bhavani Rajam, filed a petition under Section 125 Cr. P. C. for grant of maintenance to herself and for her minor female child viz., Irudaya Kanimozhi, aged, in 1975, about 3, stating as follows, She is the legally wedded wife of the present petitioner, their marriage having taken place on 14-3-1972 according to the custom and rites of Indian Christians and as per the provisions of the Indian Christian Marriage Act and their marital relationship still subsists. The respondent’ gave birth to a female child (second petitioner before the lower Court) through the revision-petitioner. Both the respondent and the petitioner were living in Bombay and thereafter at Madurai. In June, 1975, the revision-petitioner’s sister was given in marriage to one Raman, who professes another faith, much against the will of the family members. The respondent took sides with her husband and handed over her jewels for being pledged for raising funds for the conduct of the marriage, on the understanding that the petitioner would redeem them before August, 1975. As the petitioner did not do so, some ill feeling arose between the spouses. Thereupon, the petitioner started ill-treating his wife, the respondent. It is further averred in the petition that on 27-8-1975 the petitioner brought the respondent, who was then pregnant, to her mother’s house at Kavalkinar along with the child and left them there, assuring to meet their expenses. The respondent had been very faithful and had all affection towards her husband despite the ill treatment meted out to her. To her surprise, she came to know that her husband had married one Baby Irace Dora on 27-10-1975 before the Marriage Registrar at Palaymkottai, in violation of the Indian Penal Code. The petitioner thereafter completely deserted and neglected to maintain the respondent and the child. With the above allegations, the petition was filed by respondent claiming a sum of Rs. 300/- per mensem for her maintenance and Rs. 100/- towards the maintenance of the child, thus totalling a sum of Rupees 400/- per mensem.
3. Resisting the claim of the respondent, the revision-petitioner (who was respondent therein) filed a counter admitting their marriage and the birth of the female child (second petitioner before the lower Court) but contending that when he sent his wife to his native village from Bombay since the respondent pretended to have been overpowered with evil spirits, under the escort of his brother Anantharaj, both of them, instead of going straight to the village, stayed in a Lodge in Tirunelveli and had illicit intercourse and that after her return to Bombay, the respondent constantly pursued her amorous adventures with his brother in his absence and was expressing her disinclination for a sexual life with the petitioner on the pretext of her poor health and that after his transfer from Bombay to Madurai, Anantharaj also followed him to Madurai and lived in a nearby residence, and thereafter the respondent continued her adulterous relationship with Anantharaj and that when the petitioner, on suspicion, confronted her and his brother Anantharaj, both of them admitted their carnal relationship and they handed over the love letters exchanged between them to the petitioner’s father. The petitioner denies the motive attributed to him by the respondent viz., that ill-feeling arose between the spouses on account of the non-redemption of the jewels handed over by her. He has further stated that the respondent left his house as it became impossible for her to pretend to be just and loyal to her husband any more. Therefore, he would state that the respondent is not entitled to any maintenance as she has been and is living in adultery and moreover the respondent is living separately from him by mutual consent and hence she is not entitled to any maintenance. However, he would admit his liability to maintain the female child, provided the child is entrusted to his custody.
4. The revision-petitioner, who questioned the entitlement of the respondent for maintenance, on the ground that she has been and is living in adultery, examined four witnesses including himself as R. W. 1 and filed Exs. R-l to R-21. The respondent, in support of her case, examined herself alone and did not file any document. Of the witnesses examined on the side of the petitioner, the petitioner as R. W. 1 had admitted his marriage with the respondent and the birth of the child (2nd petitioner before the lower court), but challenged the right of the respondent for maintenance on the ground that she has been living in adultery with his brother and in that connection has reiterated in his evidence the various contentions raised by him in his counter. Continuing his evidence, he would state that he received a notice Ex. R. 1 from his wife, to which he sent a reply under the original of Ex. R-2. According to the petitioner, the second child born to the respondent (presumably born during the pendency of the proceedings viz., after she had left the revision-petitioner) is not a child born to him. He claims to know his wife’s hand-writing and files Exs. R. 3 R. 5, R. 7, R. 8, R. 10. R. 12, R. 14 and R. 16, letters written by the respondent to Anantharaj, and the envelopes as Exs. R. 4, R. 6, R. 9, R. 11, R. 13,. R. 15, and R. 17. All the letters and the envelopes are in the hand-writing of the respondent and have been signed by her. R. W. 2 is no other than his younger brother Anantharaj, who testifies that he was employed as a car driver in Bombay and that himself and the respondent had sexual intercourse in a Lodge at Tirunelveli on the way to Kavalkinar, and that even in the village they had such relationship, and continued the same even at Bombay even after their return, and that after his brother had been transferred to Madurai, he also accompanied him and had his connection with the respondent, and subsequently left for Bombay. He continued his evidence stating that at that time the respondent was pregnant for three months, and she confessed before him that she was impregnated by R. W. 2, and that she wrote a number of letters to his Bombay address. He admits the contents of all the letters marked through R. W. 1 and admits his having handed them over to his brother. According to him, he is prepared to live’ with the respondent. During the cross-examination he has emphatically denied the suggestion that the respondent did not write any such letter to him and that she did not have any adulterous relationship with him. R. W. 3, the father of the petitioner, has deposed that he heard people talking about the illicit intimacy of the respondent with R. W. 2 and that in the presence of himself, R. W. 1, and his daughters, the respondent admitted her illicit connection with R. W. 2. He filed Exs. R. 18 and R, 19. letters written by her to him. R. W. 4 is the sister of R. Ws. 1 and 2. She states that on 5-8-1975 the respondent confessed her illicit intimacy with R. W. 2. She files the letter Ex. R. 21 written by the respondent.
5. The respondent examined herself as P. W. 1 and deposed that she had been to Bombay along with R. W. 1 and after conceiving the second petitioner, she returned to her village and after delivery, she again went to Bombay and that after the transfer of her husband she went along with him to Madurai and lived with him without any black spot in her life. She too reiterates what she has stated in her petition. She denies the handwriting and the signatures in the letters filed by R. W. 1 as hers. However, she would admit that she wrote Ex. R. 2j to R, W. 4 as the latter threatened that he would spoil her life. Her categorical assertion is that she had never been in illicit intimacy with R. W. 2, The trial Magistrate raised three questions, viz., (1) whether the spouses live separately by mutual consent, (2) whether the respondent is living in adultery with Anantharaj, and (3) whether she is entitled to any maintenance and if so, what is the quantum thereof. He answered point No. 1 in the negative against the respondent. But, in the present revision petition both sides have not advanced any argument on that point and hence I am not called upon to discuss about it. The learned Magistrate, accepting the evidence of R. Ws. 1 to 4 and holding that Exs. R. 3, R. 5, R. 7, R. 8, R. 10, R. 12, R. 14 and R. 16 are written by P. W. 1 (respondent) and signed by her, and also taking into consideration Ex. R. 21 wherein the respondent had admittedly stated that since she had already confessed about her guilt and had prayed for condonation, rejected the evidence of P. W. 1 and concluded that the respondent had developed illicit intimacy with R. W. 2 and continued the same with R. W. 2 till he left Madurai and thereafter the respondent was living in adultery with him. However, on point No. 3, the learned Magistrate, relying on the decision in Thanikachalam Pillai v. Dhakshayani Ammal (1966) 1 MLJ 282 and Pappammal v. Dharman MANU/TN/0389/1970 : (1970)2MLJ81 , and in the light of the finding on point No. 2 that the adulterous union by the respondent with R. W. 2 was continued only up to 28-5-1975 when R. W. 2 left for Bombay, and thereafter there is no evidence to show that she was living in adultery with R. W. 2 or anyone else, the learned Magistrate held that the respondent is entitled to maintenance. In the result, the learned Magistrate awarded a sum of Rs. 125/- to the respondent and a sum of Rs. 40A per mensem to the second petitioner before him. The present revision-petition is filed only as against the order passed by the Magistrate holding that the respondent is entitled to maintenance at the hands of her husband, the petitioner herein, and the latter portion of the order awarding maintenance to the child is not challenged, and therefore, this Court has to examine the validity of the order of the lower Court only in respect of the right of the respondent for maintenance from the petitioner.
6. Mr. R. Santhanam, learned Counsel appearing for the petitioner, would strenuously and vehemently urge that the Court below, after having recorded a finding that the respondent was living in adultery with R. W. 2, erred in awarding maintenance contrary to the mandatory provisions of Section 125(4), Cr. P. C. and that he has erroneously relied upon the two decisions without understanding the real dictum laid down therein and therefore the impugned order is liable to be set aside.
7. Mr. I. Subramaniam, without challenging the finding of the Court below that the respondent is the author of all the letters mentioned above, and the finding of the Court below that she was having adulterous relationship, with R. W. 2, would contend that the materials placed before the Court are not sufficient to disentitle her from being granted maintenance as there is no sufficient proof that the respondent is living in adultery’ as contemplated under Section 125(4), Cr. P. C. in the sense that the respondent was at the time of filing the petition, living in adultery.
8. In effect the important question that would arise for my consideration in this revision petition, is whether the respondent can be said to have disentitled herself from claiming maintenance from the petitioner on account of her admitted adulterous life with R, W. 2, as found by the Court below. Only in case this question is answered in favour of the respondent, the other question regarding the quantum of maintenance would arise.
9. Section 125 of the Criminal Procedure Code, 1973 (Act I of 1974), which is in essence not punitive but preventive rather than remedial, has been enacted with the object of enabling deserted wives, helpless and deserted children and destitute parents, to secure the much needed relief, so as to prevent vagrancy. The scheme of the section, as far as wives are concerned is self-contained and rests on two primary concepts, viz., (I) that the husband must maintain his wife, and (2) that the wife must be virtuous and live with her husband. This section is not intended to be used by a wife whose marital tie is in subsistence, to claim maintenance on the grounds other than neglect or refusal to maintain. The circumstances which disentitle a wife to obtain an order for maintenance, as contemplated under Sub-section (4) of Section 125, notwithstanding the existence of the foundation and the conditions for the exercise of jurisdiction, are (1) her living in adultery, (2) her refusal to live with her husband without sufficient cause, and (3) the fact that the husband and wife have been living separately by mutual consent. Subsequent to the passing of an order awarding maintenance in favour of the wife, as per Sub-section (5) of Section 125 on proof of any one of the circumstances mentioned supra, the Magistrate shall cancel the order passed in her favour. Thus, the right of a wife whose marital tie has not been untied, to claim maintenance from her husband is subject to the condition that she is unable to maintain herself and also subject to the conditions enumerated under Sub-sections (4) and (5). It is to be noted that Explanation (b) to Sub-section (1) of Section 125 of the new Criminal Procedure Code, with regard to the right to claim maintenance, states that the expression ‘wife’ includes a woman who has been divorced by or has obtained a divorce from, her husband, and has not remarried. There was no such Explanation in the old Code. The effect of the introduction of this Expl. is that even a woman who has been divorced from her husband or has obtained a divorce from him, is entitled to maintenance from him till she gets remarried, provided she is not living in adultery till such time. Of course, the other conditions enumerated under Sub-sections (4) and (5) are not applicable to ‘such a divorced woman. The defence of the revision-petitioner in the present case is that his wife, the respondent, is disentitled to claim any maintenance from him since she has been and ‘is living in adultery’. Though the Court below has found that the respondent was living in adultery with P.W. 2 till 28-5-1975, yet it has granted maintenance to the respondent on the ground that there is neither allegation nor any evidence that the respondent was living in adultery from 28-5-1975 till the date of the petition viz., 3-12-1975. In the circumstances, we have to examine whether the said order can be sustained or whether, as contended by the revision-petitioner, the respondent has disqualified herself from claiming any maintenance on the ground of her adulterous life.
10. In the concluding portion of the counter, the husband has alleged thus:
She is not entitled to receive any allowance under the Criminal Procedure Code, because she is living in adultery.
Mr. I. Subramaniam, without challenging the finding of the lower Court, accepts that the letters marked as Exs, R. 3, R. 5, R. 7, R. 8, R. 10, R. 12, R. 14 and R. 16 are all written by the respondent Arpuda Bhavani Raj am, though the learned Counsel would still contend that his client is entitled to maintenance as there is no proof that she was living in adultery on the date of the filing of the petition. In order to see whether the abovesaid letters admittedly written by the respondent would spell out the respondent’s persistent and continuous course of conduct in living in adultery, for a considerable period, so that such adulterous life would amount to a disqualification under Sub-section (4) discharging the husband from the obligation of giving any maintenance to her, I have scrutinized the said letters meticulously with a lynx’s eye. I may straightway say that all these letters addressed to R. W. 2 give out full details of her sexual adventures, erotic episodes and chronic frustration, being portrayed with brutal frankness, expressing her primitive, abnormal and savage passion and sexual urges. The expression made and the language deployed in all these letters, stimulating immoral thoughts are so obscene, lewd, lascivious, filthy, indecent and disgusting. Every word in these pornographic letters exhibits fanciful and lustful desire to have a coital life with R. W. 2 and explains as to how even her paramour’s very sight served as external stimuli inciting her sexual feelings and how she was longing to satisfy her animated passion or pleasure. In one of these letters, the respondent has without any compunction or hesitation, openly admitted that she has been impregnated only by R.’ W. 2 and that the child in her womb was the replica (Chinnam) (Tamil) of R. W. 2 as a result of their amorous life. It is clear that the respondent, who has been robbed off of every reason overpowered by her lascivious passion has been perpetually rekindling the flames of her lust towards her paramour and has created a private hell of her own. I am disinclined to extract any portion of any one of these letters in this order, but suffice to say that the contents of those letters are undoubtedly coarse, vulgar and ugly, stimulating immoral thoughts. After going through these letters, in my view, petitioner would definitely have undergone immeasurable agony and mental strain and his blood would have reached the boiling point. It is enough to conclude that these letters are in the nature of an autobiography revealing her infidelity towards her husband and her shameless amorous intrigue with R. W. 2. I do not think that any husband who has come to know of this kind of adulterous life led by his wife would ever tolerate either to live with her or to pay any amount towards her maintenance, since such payment would only facilitate her carrying on her unending adulterous life with her paramour, at the same time getting subsistence allowance from her husband.
11. No doubt, the term ‘adultery’ as understood in the light of the social idea of the community, viz., even a single instance, is a serious breach of the matrimonial tie since such conduct is against the moral standards expected of each of the spouses.
12. Sub-section (4) of Section 125, Cr. P. C, is extracted below for a ready reference:
No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery….
As per the above sub-section a woman is not entitled to claim any maintenance allowance from her husband, if she is living in adultery, which would imply in the plain and ordinary meaning that the wife must be living in adultery at the time when she filed the application. As pointed by Krishna Iyer, J., in Bai Tahira v. Ali Hussam Fissa Ali MANU/SC/0402/1978 : 1979CriLJ151 while dealing with a case of maintenance under Section 125, Cr. P. C. that law is dynamic and its meaning cannot be pedantic but purposeful.
13. The term ‘living in adultery’ has been the subject-matter of discussion in several decisions of various High Courts. The present view taken by the Courts is that the expression ‘living in adultery’ is merely indicative of the principle that a single or occasional lapses from virtue is not a sufficient reason for refusing maintenance.
14. First I refer to a decision in Kandasami Pillai v. Murugammal ILR (1896) Mad 6. The facts of the case are as follows : – In 1887 a suit was instituted by a Hindu wife against her husband and a decree for maintenance was obtained and the judgment-debtor sued to have that decree set aside, alleging that his wife had since committed adultery and given birth to an illegitimate child. The wife denied the adultery and stated that her husband had become reconciled to her and that the child was legitimate. But, it was found that the case of the judgment-debtor was established and that defendant’s misconduct had been recent, open and continuous. In those circumstances the Court set aside the decree passed in the previous suit granting maintenance and held that the defendant was not entitled even to a bare maintenance.
15. In Kista Pillai v. Amirthammal 1938 MWN 829 : 1938 MWN 145 Pandrang Row, J., observed thus:
Emphasis is no doubt to be laid on the words ‘living in adultery’. In other words, as was pointed out by the Bombay High Court in In Re Fulchand Maganlal ILR (1928) 52 Bom 160, the clear implication from the words used by the legislature in this section (Section 488 of the old Cr. P. C.) is that, unless the wife is actually living in adultery at or about the time of the application, she is not disentitled to obtain maintenance. It is nowhere said in the section, and there is no need to introduce additional words therein, that living in adultery must be in the house of adulterer. The words ‘living in adultery’ are, in my opinion, 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 the Magistrate to decide in this case was whether there had been such adulterous conduct on the part of the petitioner 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 manner….My opinion is that in a case of claim for maintenance like this, the “respondent (husband) who puts for-ward a charge of ‘living in adultery’ against the petitioner (wife) as his only defence to the claim for maintenance, ought to begin his case, and the petitioner against whom the charge is made ought to have an opportunity of adducing rebutting evidence.
In Ma Mya Khin v. N.N. Godenho AIR 1936 Rang 446 it was held that the words ‘living in adultery’ in Section 488(5) denoted a continuous course of conduct and not isolated acts of immorality. One or two lapses from virtue could 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 the state of quasi-permanent union with the man with whom she is committing adultery. Further, it has been pointed out that there is a great distinction between the words ‘committing adultery’ and ‘living in adultery’ and that the ratio is that a solitary lapse from virtue, as distinguished from contumacious immoral conduct, should not be a ground for denying maintenance. The same Court in Ma Thein v. Maung Mya Khin AIR 1937 Rang 67, observed that the phrase ‘living in adultery’ refers to course of guilty conduct and not a single lapse from virtue. It was held that the fact (therein) that a child was begotten when the husband could not get access to the wife showed that the wife 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.
16. Ramaswami, J., in M. Kanniappan V. Akilandammal 1953 MWN 48, observed that occasional lapses from virtue are not a sufficient reason for refusing maintenance and that the continuous adulterous conduct at or about the time of the application is what is meant by ‘living in adultery’ and that the Court may in its discretion refuse to grant the allowance to cases 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. Then, having regard to the facts of that case and; ‘after referring to the various decisions of various Courts regarding the interpretation of the term “living in adultery,” the learned Judge observed as follows:
On an analysis of the case-law and the proposition 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 proved that she was living in adultery at the time of the petition, cannot be upheld.
Pursuant to the above observation, the learned Judge set aside finding of the Magistrate and ordered for a further enquiry since the parties in that case had not come to grips on the point which should be proved and rebutted in regard to the award of and withholding of maintenance and since they might also like to adduce further evidence in support of their respective contentions.
17. Ananthanarayanan, J,, as he then was, in Thanikachalam Pillai v. Dhakshayani Ammal 1966 MLW 141, quoted with approval the principle laid down in Kista Pillai’s case 1938 MWN 829. Again, in Papammal v. Dharman MANU/TN/0389/1970 : (1970)2MLJ81 K. N. Mudaliyar, J,, has approved the decision in Kista Pillai’s case and on the facts of that case, allowed the revision and ordered payment of maintenance on the ground that the husband in that case had not substantiated the charge of ‘adultery’ levelled against his wife.
18. In Pattayee Ammal v. Manickam MANU/TN/0248/1967 : AIR1967Mad254 , which was a case under Section 13 of the Hindu Marriage Act, Venkatadri, J., after referring to the decisions of various High Courts which held that the words ‘living in adultery’ mean a continuous course of adulterous life, as distinguished from one or two lapses from virtue, went to the extent of observing that the words ‘is living in adultery’ cannot mean ‘was living in adultery’. Nevertheless, the learned Judge pointed out that it would not be possible to lay down any hard and fast rule and each case must be decided upon its own facts.
19. I think it is not necessary for me to swell this judgment by referring to any more decisions on this point. The quintessence of all the judicial provincements is to the effect ‘that when the husband challenges the claim for maintenance of his wife, alleging that his wife is living in adultery, the husband ought to begin his case and prove the allegation of such adulterous life on the part of the wife by letting in evidence of her continued adulterous conduct at or about the time of the application and then the wife against whom such a charge is made ought to be given an opportunity to rebut such” allegation. Panduranga Rao J., in Kista Pillai’s case, whose decision has been oft-quoted with approval, held in that case that the continued adulterous conduct oh the part of the woman at or about the time of the application would mean such conduct shortly before or shortly after the application was made, interpreting the word ‘shortly’ in a reasonable manner. What is reasonable would depend upon the facts and circumstances of each case. In my opinion, it, would be quite meaningless and even absurd to interpret the words ‘is living in adultery’ in the sense that the husband, in order to succeed in his defence against the maintenance claim, must prove that his wife was living in adultery on the date of the application itself, as contended by Mr. I. Subramaniam. If one accepts such an interpretation, it would lead to ‘ this absurdity : Supposing a wife, who was hitherto openly living an adulterous life for a continuous period, refrains from such a conduct for a single day or for a few days or even for a few months, either wantonly to enable her to file a petition under Section 125, Cr. P. C. or due to the fact that her paramour is away from the station, and then files a petition for maintenance against her husband, can it be said that she is not guilty of the conduct of ‘living in adultery’ as contemplated Under Section 125(4) which would disqualify her from claiming maintenance? I may give one more reason why such an interpretation has no, substance. If, for example, a wife lives an impure life by her adulterous conduct continuously and openly with her paramour and begets a child through him and then pretends herself to have turned a good leaf, claiming that she has put an end to her impure life and started a virtu-bus one, about a few months prior to her filing an application for maintenance, could it be said that she is entitled to maintenance from her husband under Section 125? The position may toe different if the wife has fallen a prey due to various circumstances for a single or occasional lapses from her virtue and thereafter repents for such lapses and makes sincere and genuine attempts to obtain the pardon of her husband for her misconduct and thereafter returns to purity and starts an unalloyed and chaste life. In such cases, the wife would be quite justified in claiming maintenance and the Court also would be inclined to extend its arms of sympathy so that she may not be once again thrown to a sinful life. It is significant to note that the scope and object of this provision has been expressed clearly by the Law Commission in its 41st report thus:
In Section 4S8 (4) the words ‘living in adultery’ have been almost uniformly interpreted as indicating an adulterous course of life as distinguished from a single lapse from virtue. It has been suggested that a single act of adultery should be enough to disentitle a wife to maintenance. We are unable to accept the suggestion. Hardships are bound to arise if the wife is totally debarred from the remedy under this section because of a single lapse from virtue. Further, to deprive her of maintenance for an occasional lapse may force her to live a sinful life and give her no chance to redeem herself.” Thus the Law Commission also has expressed its view that to deprive a wife of her legitimate claim for maintenance, the husband must establish by unimpeachable and cogent evidence that his wife at or about the time of the filing of the maintenance petition has been leading a continued adulterous life.
20. Coming to the facts of the present case, the husband-revision petitioner herein who resisted the claim of his wife claiming maintenance, on the ground that she is living in adultery, has discharged the burden cast upon him by letting in evidence, both oral and documentary, by marking the various letters and documents mentioned supra, and ultimately through Ex. P-2i admittedly written by her and addressed to R. W. 4, confessing her sins committed towards her husband, and by examining the very paramour himself viz., R. W. 2, who, even goes to the extent of expressing his sustained desire to take the respondent with him and live with her. After the petitioner has let in the evidence, the respondent had a fair opportunity to rebut the charge levelled against her. In fact, she has examined herself as P. W. 1, Excepting making some bold denial, she has not disproved the allegations. Therefore, it cannot be said that the respondent has not been afforded an opportunity to rebut the charge against her. In fact, in the present revision petition, as pointed out supra, the learned Counsel for the respondent himself is unable to challenge the finding of the Court below that she was leading an adulterous life with R. W. 2 till 28-5-1975. Once the continuous adulterous life of the respondent with R. W. 2 at least till 28-5-1975 is admitted, and one of the letters even discloses that she conceived through R. W. 2, which has now resulted in the birth of her second child, now alive, the natural presumption, until rebutted, is that the respondent did not return to purity of life even after 28-5-1975. It is significant to note that all the letters referred to above are written by the respondent to her paramour, R. W. 2 between June and July of 1975 showing that she has not put an end to her adulterous conduct even after 28-5-1975. The evidence of the revision petitioner is that he came to know of the conduct of his wife only in August 1975 and thereafter took immediate steps to send away his wife to her native village. It is only afterwards the respondent has come forward with the claim for maintenance. Of course, R. W. 2, has left Madurai and has been residing at Bombay. In these circumstances, the period of interregnum during which the respondent is not proved to have had her sexual relationship with R. W. 2, cannot, in my opinion, be said to have snapped the relationship or love between the respondent and R. W. 2, so as to hold that she is not guilty of the Act of “living in adultery”. The temporary cessation of relationship between the respondent and her paramour cannot be said to be due to the fact that the respondent has returned to a life of purity or that she has turned a new virtuous life…Further more, there is no evidence that she ever repented or attempted to obtain any pardon from her husband. On the other hand, she has come forward with the claim making a false and unproved allegation as though she has been neglected by her husband due to her demand to redeem her jewels alleged to have been pledged by him. In other words, this woman, who was all along giving a misleading impression to her husband that she was his loving wife and was a perfectly chaste woman, preserving unsullied the bed of her husband, was in reality leading an adulterous life with her husband’s unscrupulous and ungrateful brother R. W. 2, pretending throughout as if she was suffering from some kind of illness or was being overpowered by some evil spirits. The overwhelming and cogent evidence adduced by the revision petitioner clearly unfolds that the respondent was adopting a treacherous policy of public virtues and private vices clandestinely sharing adulterous bed with her paramour and thereby transgressing all morals. While Section 125, Cr. P.C., requires as a sine qua non for its application, neglect, or refusal to maintain by the husband and contemplates that if a husband had contracted marriage with another woman or keeps a mistress it shall be a just ground for a wife’s refusal to live with him. Hence all the more the wife is under an obligation to lead an unalloyed and pure life to lay a successful claim for maintenance. It is needless to say that the mutual fidelity is the legal duty and moral obligation both on the part of the husband and the wife. Even by choosing to live apart from her husband for no acceptable reason, the wife loses her right to obtain maintenance as per the strict letters of Section 125, Cr. P. C. a fortiori when she is leading an adulterous life. The moral principle underlined thereunder is that no woman can fairly claim a right to be kept by two men. Otherwise, it would be contrary to all morality and principle to hold that the woman who is leading a vicious course of life is entitled to claim maintenance from her husband. When the facts and circumstances of the case on hand are examined in the light of the above principles, as I have already pointed out and for the reasons stated supra, the revision petitioner has established that the respondent was leading a continuous adulterous life and also was living in such adultery even at or about the time of the filing of the application for maintenance. Hence I hold that the order of the Court below granting maintenance to the respondent alone cannot be sustained.
21. In the result, the revision is allowed and the order of the lower Court granting maintenance to the! respondent is set aside. However, I make it clear that the unchallenged order granting maintenance to the minor child alone will hold good.
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