P L D 1964 (W (PLP)

3. Mr. Mushtaq Hussain Advocate appearing on behalf of the respondent No. 2 conceded that in as much as the two minor daughters who were with his client at the time of the order passed by the lady Magistrate are now with the respondent No. 1, the maintenance awarded to his client in respect of these two girls may be set aside and this reference accepted so far as this part of it is concerned. However, with regard to the second leg of this reference concerning the recommendation that the monthly maintenance awarded to his client should also be set aside on the ground of her adultery, he strenuously opposed this recommendation and, in doing so, raised several points of interest. But, as the fate of this reference must rest upon a determination of the true meaning of the words "living in adultery" appearing in sub‑clauses (4) and (5) of section 488, Cr. P. C., it has become unnecessary to consider the other points raised by the learned Advocate appearing on behalf of the respondent No. 2.

4. Mr. Mushtaq Hussain contended that these three words "living in adultery" mean and imply a continuous course of misconduct and that the mere birth of an illegitimate child does not amount to living in adultery in order to fully appreciate the import of this argument of the learned Advocate, it is necessary to mention here that the advocate of the respondent No. 1, when cross‑examining the respondent No. 2 at the hearing before the learned Lady Magistrate, secured an admission from her to the effect that she had given birth to a dead son four months prior to the date of her giving evidence in that Court. She was examined in the Magistrate Court on 14‑11‑1961 and she had stated in her application under section 488, Cr. P. C. that three years prior to the presentation of this application by her on 5‑10‑1961, her husband had turned her out of his house. However, in her evidence in the trial Court she has stated that after she and her husband had separated, her husband used to visit her on Sundays and take her to his shop where intimacy occurred. She added that it was thus that she became pregnant again and gave birth to a dead son four months before the date of her giving evidence in the trial Court. Her husband, of course, denied the paternity of this dead child and it would appear that the two Courts below have taken contrary views on this question; the Lady Magistrate accepting the version of the respondent No. 2 and the learned A. S. I. that of the respondent No.

1. But, Mr. Mushtaq Hussain has argued against this reference on the assumption that the child was an illegitimate child and his main contention is that, even so, one lapse from virtue cannot disentitle a wife to maintenance from her husband. He emphasised that the marriage bond still continues and that his client is still the legally wedded wife of the respondent No. 1.

5. Mr. Mushtaq Hussain has referred me to a wealth of case -law commencing from before the start of the present century down to the present day in support of this contention of his. The first of these cases is a decision of a Full Bench of four Judges of the Madras High Court in the case of Gantapalli Appalamma v. Gantapalli Vellayya (I L R 1897 Mad. 470). The question referred to the Full Bench for decision in this case was whether adultery on the part of husband not being such as would justify a conviction under the Penal Code may, nevertheless, constitute sufficient cause for the wife separating from her husband and enabling her to claim maintenance under the provisions of the Criminal Procedure Code. The unanimous opinion of the four Judges in this case was that the answer to the question must be in the affirmative because the words "living in adultery" point to a continuous course of conduct and not to isolated acts of immorality. Their Lordships pointed out that the verb used in this part of section 488, Cr. P. C. is "may" and not "shall" thereby vesting in the Magistrate concerned with a discretion in the exercise of which he should be guided by the social ideas and feelings of the community to which the parties belong. The second case relied upon by the learned Advocate is to be found in 5 Cr. L J

359. This is a D. B. decision also of the Madras High Court as far back as the year 1907. It was held by their Lordships that‑ "A single act of adultery does not necessarily amount to living in adultery so as to disentitle the wife from claiming maintenance from her husband under section 488 of the Criminal Procedure Code." Their Lordships further pointed out that the words "living in adultery" in clause 4 of the section refer rather to a course of conduct or, at least, to something more than a single lapse from virtue.

6. Mr. Mushtaq Hussain next referred to the case of Jatindra Nath v. Gouri Bala Debi (A I R 1925 Cal. 794) where a Division Bench presided over by Sir Lancelot Sanderson, C. J. held that‑ "Unless continuity of conduct is established, it cannot be inferred from a single act of adultery that the woman is "living in adultery". In the present case it was held that although the woman had given birth to an illegitimate child it was open to the Magistrate to find that apart from that circumstance, she was not living in adultery." In actual fact, the Magistrate in this case had found that the wife had given birth to an illegitimate child and yet he held that there being nothing further to show that the woman was living in adultery, this act, by itself, would not disentitle her to mainten ance from her husband. A similar view was taken by Fawcett and Mirza, JJ. in a case in A I R 1928 Bom. 59 and in three more cases in A I R 1936 Rang. 446, 39 Cr. L. J. 228 and A I R 1958 Mysore

41. In the last of these cases it was held by a Division Bench of the Mysore High Court that‑ It is not a stray act or two of adultery that disentitles a wife from claiming maintenance from her husband; but it is a course of continuous conduct on her part by which it can be called that she is living an adulterous life that takes away her right to claim the said maintenance. It would thus appear from the case law referred to by the learned Advocate appearing on behalf of the respondent No. 2 that right from the year 1897 up to 1958 the High Courts in this Asian Sub- Continent have repeatedly taken the view espoused 1by him in this case.

7. Appearing on behalf of the respondent No. 1 Mr. Zahoorul Haq first attempted to distinguish the facts of this present case from the case in I L R 20 Mad. 470 by pointing out that in that case it was the husband who had committed adultery and concubinage being allowed under the Hindu Law exception could not be taken to his adulterous conduct I am of the view that it makes no difference whether it is the husband or the wife that departs from the path of virtue because the important principle is that such lapses by whoever they may be, should not be isolated but should form a continuous course of conduct before the right to maintenance is destroyed. Mr. Zahoorul Haq then referred me to a Single Bench Judgment of the Rangoon High Court in a case A I R 1937 Rang. 67 in which B. A. U. J. after holding that the word "living" in the phrase "living in adultery" conveys the idea of continuous, and consequently the phrase refers to a course of guilty conduct and not to a single lapse from virtue, yet held that, where a child was begotten during the absence of the husband, the wife must have been guilty of adultery on more than one occasion and, therefore, she was not entitled to any maintenance under section 488, Cr. P. C. Examining closely, however the facts of this case I find that there was definite evidence in this reported case on the record to prove that the wife's lover was seen going to her house and was actually caught one night in her bed. In the instant case, barring an allegation that the respondent No. 2 was once seen by the respondent No. 1 near this High Court building going with a man, there is nothing to suggest or to indicate that she ever had anything to do with other men. The learned Advocate also referred me to a case I L R 31 Mad. 185 in which it has been emphasised that under section 488, Cr.P.C. the Magistrate has a discretionary power in granting maintenance and that such discretion is not wrongly exercised when the Magistrate refuses maintenance to a woman expelled from her caste because of her adultery with one of a lower caste thereby rendering it impossible for her husband to live with her. The state counsel supported the contentions of Mr. Zahoorul Haq.

8. Having myself carefully pondered over the meaning of the three words "living in adultery" as used in sub‑clauses (4) and (5) of section 488, Cr. P. C. and having considered the case‑law on this point I have reached the conclusion that these words mean and imply a continuous course of conduct of adultery not necessarily promiscuous, but certainly something more than an occasional lapse from the path of virtue. The word used in the A section is "living" as opposed to the mere commission of an act of adultery or as appears in the language of the Bible "being taken in adultery". It seems tome that the word "living" by itself denotes something continuous, something that is lasting and not merely spasmodic or occasional. Hence, the various High Courts in this vast Asian Sub‑Continent have for the past sixty years and more consistently taken the view that one or two lapses from virtue would not amount to living in adultery. In the instant case, it has not been conclusively established that the respondent No. 2 had a lover and that the child born to her was, in fact, illegitimate. The case on her behalf has been argued on the assumption that the child is illegitimate and I hold that even this, by itself, cannot be sufficient for holding that she is living in adultery so as to disentitle her from receiving the maintenance awarded to her by the trial Magistrate against her husband.

9. In the result, then, this reference is accepted so far as the first part of it is concerned and the maintenance of Rs. 50 per month awarded by the trial Court to each of the two minor daughters of the respondents is set aside. But, the second recommendation contained in this reference that the monthly maintenance of Rs. 70 to be paid by the respondent No. 1 to the respondent No. 2 be also set aside on the ground of her adulterous conduct is not accepted and this reference is, therefore, with these answers returned to the Court from whence it came. S. Q./K. B. A. Reference partly accepted.