This is an appeal preferred against the order made by the learned Subordinate Judge of Kumbakonam in O.P. No. 43 of 1953.

The facts are: The appellant-petitioner before us Mahalingam Pillai is the husband of the respondent Amsavalli. The appellant is a resident of Poundarigapuram village and the respondent is a resident of Abhishekamangalam village in Nannilam Taluk. The married life of this couple proved short-lived. The case for the husband in a notice which he gave before filing this O.P. was that the respondent had left him to lead an openly immoral and improper life. In this petition his case was that she had eloped with one Saravana Pillai, P.W. 4, of Maruvancheri in Nannilam Taluk in January, 1952 and has been living with him as his concubine openly. The case for the wife was that this appellant has had incestuous relationship with his sister Gundu Achi and that on that account there were quarrels and finally the petitioner beat her, removed her tali, branded and drove her away from his residence. The petitioner has come to Court on the foot of the allegations set out above for dissolution of marriage under section 5(1)(b) of Madras Act VI of 1919.

The learned Subordinate Judge held that the petitioner had not proved his case for dissolution of marriage and dismissed the petition. Hence this appeal.

In the lower Court the respondent applied that her husband might be directed to provide her with costs for defending the application and for alimony pendente lite. The learned Subordinate Judge without unfortunately being fully acquainted with the law on the subject directed the petitioner to pay Rs. 100 by way of costs and refused to provide for alimony pendente lite on the ground that a charge of unchastity has been made against the wife and had to be enquired into. It would appear that the petitioner has paid those costs to the wife. In appeal the wife applied once again for the appellant being directed to furnish her with a sum of Rs. 200 towards defending the appeal and alimony pendente lite at Rs. 30 per month during the pendency of the, appeal. Basheer Ahmed Sayeed, J,, directed the appellants to pay Rs. 100 towards costs for defending the appeal and Rs. 25 per month towards maintenance as alimony pendente lite during the pendency of the appeal. The petitioner who is said to have movable and immovable properties worth Rs. 9,500 has contumaciously refused to comply with this order apparently hoping that the wife who had lost recently her father, who has been supporting her till now, would give up her defence and enable him to have a walk-over. The bearing of this contumacious refusal to comply with the direction of Basheer Ahmed Sayeed, J.‘s order will be discussed presently.

Two points that arise for determination in this appeal are: Firstly, whether on the facts alleged a case of concubinage or prostitution or living in adultery has been made out; and secondly, what is the scope and extent of and the consequence of the contumacious non-compliance with the order of Basheer AhmedSayeed, J., regarding the payment of costs and alimony pendente lite.

Point 1: - Under section 5(1)(b) of Madras Act VI of 1949 a husband would be entitled to dissolution of marriage on the ground that the wife is the concubine of any other man or is leading the life of a prostitute. This Act has been repealed and superseded by the Central Act XXV of 1955, viz., the Hindu Marriage Act. Under section 13 of Act XXV of 1955 the ground set out above as it stands will not be available because for divorce under section 13 the only relevant ground in the circumstances of this case would be living in adultery and anything else would only be a ground for judicial separation under section 10 of the said Act, where one of the grounds is that the other party, after the solemnization of the marriage had sexual intercourse with another person other that, his or her spouse. I need not point out that in as much as an appeal is a continuation of the suit or