Entitlement to maintenance is contingent upon a valid marriage, and the legal interpretation of 'living in adultery' distinguishes it from living an unchaste life.

Newsam, J.

1. This is a petition praying that an order of the Sub-Divisional Magistrate, Devakottai, awarding Rs. 15 as maintenance to a woman daughter, be revised.

2. The petitioner resisted the respondents claim for maintenance on two important grounds. The chief ground was that the woman seeking to be maintained was not his lawful wife. The pleadings are not exactly explicit on the point but their meaning is quite clear. Thus, petitioner said in his statement "She was taken as wife by me 12 years ago, though there was no actual marriage". There was a great deal of evidence on both sides on this question, but the Magistrate declined to give a definite finding. He seems to have been under the impression that a woman is entitled to maintenance if she has lived with a man as his wife for 12 years and has also borne him a child. That, however, is certainly not the law. Only legally married woman are entitled to maintenance. I must therefore send this case back to the lower Court for a definite finding after hearing both sides on the evidence already on record on the question whether there was a valid marriage between the parties. I may perhaps add that this Court will be very loath to interfere with such a finding of fact, for the party aggrieved by the finding may always file a suit. But this Court must interfere if a Magistrate awards maintenance to a woman and does not justify his action by a definite finding that she is the wife of the person ordered to pay her maintenance. For only wives are entitled to maintenance. The petitioner also pleaded that even if it be found that the woman is his wife she is not entitled to maintenance because she is "living in adultery". The only evidence of that offered was that she was expecting a baby which could not be his and had more than one lover. Now, I understand the phrase "living in adultery" to mean something quite different from living 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. The obligation of a husband to maintain his wife arises from the anxiety of the legislature to protect deserted wives from the bitter necessity of earning a living by trading on their sex. That obligation however ceases when it has been voluntarily assumed by some man other than the womans husband. No woman can fairly claim a right to be kept by two men. But it obviously is not the law that a man may desert and neglect his wife and thus tempt her to unchastity and then resist her claim to be maintained by him on the ground that she is unchaste. This view of the meaning of the words "living in adultery" receives support from Ma Mya Khin v. N.L. Godehno A.I. Rule 1936 Rang. 446.

3. The lower Courts order is set aside and the case remitted for disposal afresh on the evidence already on record in the light of the above remarks, that is, after recording a finding on the validity of the marriage.