A wife who has led an immoral life may still be entitled to 'starving maintenance' if she has repented and is leading a moral life at the time of claiming maintenance.

Happell, J.

1. The appellant brought a suit for maintenance against her husband in the Court of the District Munsif of Palni. The District Munsif gave her a decree for Rs. 60 per annum for maintenance and Rs. 7 per annum for clothing from date of the plaint. The husband appealed and the Subordinate Judge of Dindigul reversed the decree of the trial Court and dismissed the suit. Admittedly, the plaintiff has been living apart from her husband since about 1923, and the learned Subordinate Judge found that she had led an immoral life with the witness D. W. 2 between the years 1929 and 1931. The finding of the Subordinate Judge on this point cannot be challenged in second appeal, and, if proof that the plaintiff was leading an immoral life between the years 1929 and 1931, was a good defence to the suit, this second appeal must fail.

2. It is argued, however, for the plaintiff that she was in any event entitled to what is Called in the text books "starving maintenance." It has been held, no doubt, that a wife who has once led an immoral life may still be entitled to "starving maintenance" if she has repented and at the date when she claims maintenance is leading a moral life. In fact, in the present suit, there was no evidence as to whether the plaintiff was or was not leading a chaste life when the suit was filed. The contention for the plaintiff, however, is that it was not sufficient for the defendant to prove that she had led an immoral life, but the burden was on him also to prove, if he was to escape the payment of any maintenance, that, she was leading an immoral life at the date of the suit. This question has been dealt with by Wadsworth J. in Jeeva Ammal v. Ranganatha Mudaliar A.I.R. 1939 Mad. 788. The facts in that case are not distinguishable from the point of view of the principle involved, from the facts in the present case. In that case a wife had left her husbands house as a result of her own adultery and then, after remaining apart from him for many years, had filed a suit for maintenance. She asked for maintenance on the ground that she throughout had remained chaste and that she had left her husbands house owing to his misconduct. The plaintiff therefore, in the present case as in Jeeva Ammal v. Ranganatha Mudaliar A.I.R. 1939 Mad. 788, once it was found that she had been guilty of adultery, has fallen back on the plea that she at any rate is entitled to starving maintenance for the reason that her husband has not proved that she was leading an immoral life at the date of suit. Wadsworth J. rejected this contention and observed that it seemed to him quite clear,

that a woman cannot file a suit on the basis of her own chastity and her husbands misconduct and, when she is proved to be unchaste and her husbands conduct is found to be irreproachable, fall back upon a plea of infidelity and subsequent reformation which has never been advanced and is not supported by the necessary evidence.

Learned counsel for the plaintiff contends that Wadsworth J.s decision is opposed to the decision of a Bench of this Court in Subbayya v. Bhavani A.I.R. 1914 Mad. 665. In that case a husband had brought a suit for a declaration that his wife was not entitled to maintenance from him, and he proved that some 18 months before the date of suit she had given birth to a child that was not his. It was held that this was not sufficient to entitle the husband to a decree as he had not proved that his wife was living unchastely at the date of suit. The case is not referred to by Wadsworth J. but it seems to me that it is distinguishable. In Jeeva Ammal v. Ranganatha Mudaliar A.I.R. 1939 Mad. 788, the decision is founded not merely on a rule as to the burden of proof, but on the question of the burden of proof taken with the case pleaded. Wadsworth J. refers to Nagalakshmamma v. Viswanatha Sastri (1912)23MLJ289 in support of the view taken by him. That case was decided by a Bench of this Court and it was held that where a wife has committed