Entitlement of wife for claiming maintenance from her husband.

This is a Revision Petition preferred by the petitioner against the order of the learned First Class Magistrate, Civil Station, Bangalore, in Crl. Mis. No. 37 of 1955 granting maintenance to the respondent at the rate of Rs.15 per mensem under section 488 of the Criminal Procedure Code.

The facts that have given rise to this petition are briefly as follow:

The petitioner and the respondent are husband and wife respectively. The respondent filed an application under section 488 of the Criminal Procedure Code before the learned First Class Magistrate, Civil Station, Bangalore, claiming maintenance from her husband, the petitioner. Her case is that she v as married to the petitioner on 3rd November, 1954, that they lived on affectionate terms in petitioner’s house at Doddigunta for some time along with petitiorer’s parents, that petitioner’s household people ill-treated her, that the petitioner who is a Lance Naik in the Indian Army left Bangalore for Jhansi on duty leaving her in his parents’ house, that subsequently the petitioner’s people began to harass and ill-treat her, that they ultimately brought about misunderstandings between herself and her husband on a false charge of unchastity on her part, that the petitioner refused and neglected to maintain her and that he is, therefore liable for her maintenance.

The objection statement of the petitioner is to the effect that the allegations of ill-treatment at the hands of his parents and others are false, that the petitioner had to leave Bangalore on account of exigencies of service, that during his absence the respondent has committed adultery with one Raman who was residing close to the petitioner’s house, that as such the respondent is not entitled to any maintenance, that he is getting only Rs. 60 as his pay and allowances, that the claim is high and that the application is liable to be dismissed.

The learned Magistrate held that there were two instances of adultery on the part of the respondent but that they were not sufficient to disentitle her to maintenance and he accordingly granted her maintenance at the rate of Rs. 15 per mensem. As against that order, this petition is filed.

The learned Magistrate has found on the evidence adduced in the case that the respondent was guilty of adulterous conduct on two occasions. In spice of that finding, the learned Magistrate has granted maintenance to the respondent and the reason given by him is that one or two lapses from virtue on the part of a wife would not amount to “living in adultery” within the meaning of clause (4) of section 488 of the Criminal Procedure Code and that these words point to a continuous course of conduct and not to isolated cases of immorality. In support of this proposition of law, he has relied on certain authorities of some of the High Courts in the Indian Union. Those decisions, no doubt, support the view taken by the learned Magistrate.

In Pathala Achamma v. Pathala Mahalahskmi1, a Division Bench of the Madras High Court consisting of Benson and Wallis, JJ., has held that a single act of adultery does not necessarily amount to “living in adultery” within the meaning of section 488, clause (4) of the Code of Criminal Procedure and will not justify a Magistrate in refusing maintenance. Their Lordships further observe that the words “living in adultery” refer to a course of conduct and mean something more than a single lapse from virtue. The same principle is enunciated in the subsequent decision reported in Lakshmi Ambalam v. Andiammal2. Newsam, J., has observed that a husband will be absolved from obligation to maintain his wife when his wife has got a de facto protector with whom she lives and by whom she is being maintained. The same view has been taken by their Lordships Sanderson and Chotzner in Jatindra Math Mohan Banerjee v. Gouri Bala Debt3. They have observed that unless continuity of conduct is established, a single act of adultery is not enough to infer that the woman is “living in adultery”