The interpretation of 'living in adultery' under Section 488, Criminal Procedure Code requires consideration of continued adulterous conduct at or about the time of the application for maintenance, and procedural fairness in presenting and rebutting evidence of adultery as a defence.

Pandrang Row, J.

1. The petitioner in this case is the husband of the respondent who has obtained an order of maintenance in her favour from the Sub-Divisional Magistrate of Ranipet under Section 488, Criminal Procedure Code. The main defence to the application for maintenance was that the petitioner was living in adultery. The learned Sub-Divisional Magistrate observes on this part of the case merely that there is ample evidence that the petitioner was having illicit intercourse with Chinnappa and he then goes on to quote certain observations of Newsam, J., in Lakshmi Ambalamv. Andi Ammal AIR1938Mad66 on the file of the High Court to the effect:

Living in adultery is something quite different from leading an unchaste life. The principle it seems to me is that a husband is absolved from the obligation to maintain his wife when his wife has a de facto protector with whom she lives and by whom she is being maintained as if she were his wife.

2. The learned Magistrate then comes to the conclusion that "under this interpretation the sometime immoral character of the petitioner would not constitute living in adultery." The facts elicited in evidence are not merely that there was only one individual lapse or even occasional lapses from virtue but that the petitioner actually eloped with Chinnappa and lived with him in another place, namely, Wallajah, for some days, that when discovered by her husbands relations and pressed to return, she refused to return, and that she had to be taken by force from her paramour to her parents house. There is also certain evidence adduced, no doubt at a late stage of the case without giving an opportunity to the petitioner to rebut, to the effect that the petitioner, even when the case was pending before the Sub-Divisional Magistrate, was continuing her intrigue with Chinnappa. The learned Sub-Divisional Magistrate makes no reference to this evidence, and he appears to have thought that the only evidence against the petitioner was in respect of her immoral character in the past, that is to say,, before the application. I am unable to say that this is a satisfactory way of disposing of a claim for maintenance either from the point of view of the petitioner or of the counter-petitioner. I am not prepared to go to the length of saying that, unless a married woman lives with the adulterer in the latters own house and is maintained by him as a wife, the husband will be liable to pay maintenance under Section 488, Criminal Procedure Code. Emphasis is no doubt laid on the words "is living in adultery". In other words, as was pointed out by the Bombay High Court, in Fulchand Maganlal, In re I.L.R.(1927) 52 Bom. 160 the clear implication from the words used by the legislature in this section 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 the 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. This case has not at all been approached from this standpoint. The learned Magistrate has decided the case in a way which appears hardly to do justice to the parties. In particular the serious allegation of subsequent adultery made in the evidence given by the last witness examined for the respondent in the Magistrates Court should have been allowed to be contradicted or rebutte