1948     Present. Basnayake J.

ARUMUGAM, Appellant, and ATHAI,
Respondent

S. C. 986-M. C. Batticaloa, 3,413

Maintenance-Refusal by husband to pay-Wife living in adultery-What must be established-Maintenance Ordinance, s. 4.

A person who asserts that his wife is disentitled by section 4 of the Maintenance Ordinance to receive an allowance by reason of the fact that she is living in adultery must establish that she is leading a life of continuous adulterous conduct.

APPEAL from an order of the Magistrate, Batticaloa.

G. Thomas, for the appellant.

No appearance for the respondent.

April 5, 1948. BASNAYAKE J.-

The appellant, who has been ordered to pay a sum of Rs. 10 per mensem as maintenance under section 2 of the Maintenance Ordinance, appeals from that order on the ground that the proof of marriage adduced by the

respondent in support of her claim is unsatisfactory. Learned Counsel for the appellant submits that the respondent is not in any event entitled to receive an allowance under section 2 as she is living in adultery.

On the first point there is a considerable body of evidence to show that a marriage ceremony according to Hindu rites was performed. The details of the ceremony are related by the respondent, an elder of the village claiming the title of " Mullaikaran ", and the dhoby who attended the wedding. The appellant denies that there was any customary marriage ceremony whatsoever. The learned Magistrate who has seen and heard the witnesses finds as a fact that the appellant and the respondent went through the marriage ceremonies detailed by the respondent and her witnesses. I see no reason to disturb that finding. Once a marriage in fact is established, a marriage in law is presumed. There are numerous decisions which support this view. It will be sufficient if I quote the words of Lord Justice Giffard in the case of Inderun Valungaypooly Tavar v. Ramasamy Pandia Talaver 1[13 Moore's Indian Appeals p. 141 at p. 158.] wherein he says " When once you get to this, viz., that there was a marriage in fact, there would be a presumption in favour of there being a marriage in law ". It has been held in the case of The King v. Perumal 2[(1911) 14 N. L. R. 496 at p. 507.], a decision of three Judges of this Court, that when the fact of the celebration of the marriage, is established it will be presumed, in the absence of evidence to the contrary, that all the necessary ceremonies have been complied with.

There is no evidence to support the submission of learned Counsel that the respondent is living in adultery. The appellant's bare statement, that the respondent did not live in his house at any time, coupled with the denial that he is the father of the respondent's child, is in my view not sufficient to entitle the appellant to claim the benefit of section 4 of the Maintenance Ordinance. That section reads: "No wife shall be entitled to receive an allowance from her husband under section 2 if she is living in adultery, or if, without any sufficient reason, she refuses, to live with her husband, or if they are living separately by mutual consent."

A person who