Y. Mangatayaru vs Y. Seshavataram and Another

G. Radhakrishna Rao, J.—The petitioner married the respondent according to Hindu rites at Bhimavaram on 10.5.1969. The petitioner gave birth to a female child on 9.1.1970. Subsequently she gave birth to another child. The respondent/ husband filed O.P. No. 102/75 on the file of the Subordinate Judge, Narsapur, for divorce on the ground that the petitioner-wife is living in adultery. The husband produced tape-recorded cassettes regarding conversations in the bedroom with her paramour and also the photographs. The Learned Subordinate Judge believed the version of the husband and granted divorce u/s 13 of the Hindu Marriage Act. Against that, the wife filed CMA No. 141/81 in this Court also confirmed the finding of the Subordinate Judge that she is living in adultery. The wife filed M.C. No. 39/76 on the file of the IInd Addl. Judicial I Class Magistrate, Bhimavaram, claiming maintenance for herself and her two daughters. That petition was dismissed for default. The wife also filed a separate petition for maintenance of the two children and the same was allowed granting maintenance at the rate of Rs. l25/- per month. The husband after divorce, married another lady and he got two children and he is an employee in the Food Corporation of India. The wife now filed this petition in the year 1985 alleging that as a divorce she is entitled for maintenance and she requires atleast Rs. 620/- per month but as the Cr.P.C. limits the claim to Rs. 500/- she restricted her claim to Rs. 500/- per month.

The husband filed a counter alleging that not only she was living in adultery but she continued to live in adultery, and she is not entitled for maintenance. The wife was examined as PW1. The respondent husband was examined as RW1. Four more witnesses were examined to prove that after divorce she was moving freely. The trial court believed the version of the husband and found that she is living in adultery and refused to grant maintenance. Against that, the present revision has been filed.

It is contended on behalf of the divorcee wife i.e. the petitioner herein that after the divorce the question of committing the offence of adultery does not arise as she is no more a wife and the reasoning given by the lower court disentitling her from claiming maintenance is not correct. The previous proceedings in the O.P. before the Sub Court and the order of this Court in the C.M.A. shows that she is living in adultery openly to the knowledge of her husband and she is leading a. promiscuous life and a decree for divorce also has been granted. In 1976 claim for maintenance has been filed u/s 125 Code of Criminal Procedure but the same was dismissed for default. The evidence of RWs. 2 to 5 shows that she is moving freely with men which gives an impression that she was having illicit connections with some persons. If at one point of time it has been found that the wife was living in adultery which ultimately resulted in suffering a decree, the court has to consider the evidence of the wife in a subsequent petition with great care and caution. The burden is heavy on the wife also to show that she was leading a virtuous life and she has repented herself.

In this case, the case set up by the petitioner is one of total denial. The evidence adduced on behalf of the husband prior to the divorce or subsequent to the divorce indicates more that she continued to live in adultery rather than choosing a virtuous life.

The word ''adultery'' has been considered in many decisions since a century. The word ''is living in adultery'' in Sub-section (4) of Section 125 Code of Criminal Procedure would not take into its fold stray instances of lapses from virtue it would not also means that the wife should be living in adultery on the date of the petition. The proper interpretation would be that there should be proof of adulterous living shortly before or after the petition, shortly being interpreted in a reasonable manner viewing it in the light of the facts "of the case.

In Kanaasami Pillai v. Murugammal ILR (1986) 19 Mad. 6 a suit was filed in 1887 by a Hindu wife against her husband and a decree for maintenance was obtained and the judgment-debtor sued to have the decree set aside, alleging that his wife had since committed adultery and given birth to an illegitimate child. The wife denied adultery and stated that her husband had become reconciled to her and that the child was legitimate. But it was found that the case of the judgment-debtor was established and that defendant''s misconduct had been recent, open and continuous. In those circumstances the court set aside the decree passed in the previous suit granting maintenance and held that the defendant was not entitled even to a bare maintenance.

In Kista Pilia v. Amirthammal, 1938 Mad.W.N.(Crl.) 145, Panduranga ''Row. J. observed thus:

Emphasis is no doubt to be laid on the words ''living in adultery''. In other words, as was pointed out by the Bombay High Court in In Re Fulchand Maganlal, AIR (1928) 52 Bom. 160 the clear implication from the words used by the legislature in this Section (Section 488 of the old Cr.P.C.) 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 adulteror. 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... My opinion is that in a case of claim for maintenance like this, the ''respondent (husband) who puts forward a charge of ''living in adultery'' against the petitioner (wife) as his only defence to the claim for maintenance, ought to begin his case, and the petitioner against whom the charge is made out to have been an opportunity, of adducing rebutting evidence.

In M.A. Mya Khin v. N.N. Godenho AIR 1936 Rang. 446, it was held that the words ''living in adultery'' in Section 488(5) denoted a continuous course of conduct and not isolated acts of immorality. One or two lapses from virtue could be acts of adultery, but would be quite insufficient to show that the woman was living in adultery, which means that she must be living in the State of quasi-permanent union with the man with whom she is committing adultery. Further, it has been pointed out that there is a great distinction between the words ''committing adultery'' and ''living in adultery'' and that the ratio is that a solitary lapse from virtue, as distinguished from contumacious immoral conduct, should not be a ground for denying maintenance. The same court in M.A. Thein v. Maung. Mya Khin AIR 1937 Rang. 67, observed that the phrase ''living in adultery'' refers to course of guilty conduct and not a single lapse from virtue. It was held that fact (therein) that a child was begotten when the husband could not get access to the wife showed that the wife must have been guilty of adultery on more than one occasion and therefore she was not entitled to maintenance, apparently on the presumption that it is extremely rare that conception happens after one solitary intercourse.

Ramaswami, J. in M. Kanniappan v. Akilandammal, 1953 Mad.W.N.(Crl.) 48, observed that occasional lapses from virtue are not a sufficient reasons for refusing maintenance and that the continuous adulterous conduct at or about the time of the application is what is meant by ''living in adultery'' and the court may in its discretion refuse to grant the allowance in cases where, apart from the fact that living in adultery in the sense of a course of continuous adulterous conduct has not been proved, there may exist circumstances which would justify such refusal. Regarding the interpretation of the term ''living in adultery'', after referring to the various decision, the Learned Judge observed as follows:

On an analysis of the case-law and the proposition deducible therefrom, the conclusion of the Learned Chief Presidency Magistrate granting maintenance on the ground that though the adulterous conduct on the part of the petitioner has been proved, it has not been further proved that she was living in adultery at the time of the petition, cannot be upheld.

Pursuant to the above observation, the Learned Judge set aside the finding of the Magistrate and ordered for a further enquiry since the parties in that case had not come to grips on the point which should not be proved and rebutted in regard to the award of and withholding of maintenance and since they might also like to adduce further evidence in support of their respective contentions.

Anantbanarayan. J. as he then was, in Thanikachalam Pillai v. Dhakshyani Ammal 1966 Mad. LW(Crl.) 141, quoted with approval the principle laid down in Kista Pillai case (supra). Again in Papammal v. Dharman, (1970) 2 Mad. LJ 81, K.N. Mudaliyar, J. has approved the decision in Kista Pillai''s case and on the facts of that case, allowed the revision and ordered payment of maintenance on the ground that the husband in that case had not substantiated the charge of ''adultery'' levelled against his wife.

In Pattayee Ammal Vs. Manickam Gounder and Another, F which was a case u/s 13 of the Hindu Marriage Act, Venkatadri. J. after referring to the decisions of various High Court which held that the words ''living in adultery'' means a continuous course of adulterous life, as distinguished from one or two lapses from virtue, went to the extent of observing that the words ''is living in adultery'' cannot mean ''was living in adultery''. Nevertheless, the Learned Judge pointed out that it would not be possible to lay down any hard and fast rule and each case must be decided upon its own facts.

In State of Punjab Vs. Kashmir Singh, , the facts are: the wife was lifting in adultery with her husband''s brother. Many letters written by the wife to her paramour were marked. One of the letters discloses that she conceived through RW2 which has resulted in the birth of her second child, now alive. The Learned Judge observed that the temporary cessation of relationship between the respondent and her paramour cannot be said to be due to the fact that the respondent has returned to a life of purity or that she has turned a new virtuous life... Further more, there is no evidence j that she ever repented or attempted to obtain any pardon from her husband. It was finally concluded by observing that the petitioner has established that j the respondent was leading a continuous adulterous life and also was living in such adultery even at or about the filing of the application for maintenance. It is not necessary that the wife should live in adultery as on the date of the petition. It is the evidence as a whole that has to be taken into consideration.

In Captain Ramesh Chander Kaushal Vs. Mrs. Veena Kaushal and Others, the Supreme Court observed that whether the appeal ends in divorce or not, the wife''s claim for maintenance qua wife under the definition contained in the Explanation (b) to Section 125 of the code continues unless parties make adjustments and come to terms regarding the quantum or the right to maintenance. The Supreme Court only reiterated the principle that even after divorce, also the divorce wife is entitled for maintenance. It is the statute that gives a right to the divorce till she re-marries.

It is on that basis that the petitioner herein remained unmarried and she claimed that she is entitled for maintenance.

In support of the claim, the wife relied upon Mariyumma Vs. Mohammed Ibrahim, wherein it was observed:

Section 125(1) of the new Code obliges a person who refuses or neglects to maintain a woman who was his wife and who had been divorced to maintain her if she is unable to maintain herself. Such obligation is to last unless the re-marries. The scope of the term wife is enlarged to take in the case of such a woman and this is by Explanation (b) to Section 125(1). Explanation (b) to that Sub-section reads thus:

Explanation:- For the purposes of this Chapter:

(a)....

(b) ''wife'' includes a woman who has been divorced by, has or obtained a divorce from, her husband and has not remarried.

The effect of the explanation is evidently to read the term wife in Chapter IX of the Code as meaning not only the wife as generally understood but also a woman who has been divorced but who has not remarried. It may be noticed that Section 125(1) deals with the obligation of a ''person'' (sic) of a husband or of a father or of a son. The scope of the explanation is not to create a jural relationship between the divorced woman and the erstwhile husband. No new obligation out side the scope of the Code is sought to be imposed either on the divorced woman or her erstwhile husband by reason of the explanation. The object of the explanation is only to enable such a divorced woman to claim maintenance from her erstwhile husband until her re-marriage. The very object of the provision in Section 125 of the Code is to provide for a minimum obligation on the part of a person to maintain his wife, children, parents and his divorced wife who is not remarried under certain circumstances.

The Full Bench also considered the effect of the provisions of Sections 125 (4) and 125(5) of the Code. A woman whose marita tie does not subsist cannot be guilty of adultery much less can she be said to be living in adultery. She may live a promiscuous life, but that would not render her guilty of adultery, for adultery is a term that denotes an offence against the institution of marriage. It is only under the inclusive division of ''wife'' in Section 125(4) the divorce is entitled to claim. When the wife includes ''woman'' who has been divorced, the incidents hat accrued to the term ''wife'' also must follow. A divorcee cannot take advantage of the inclusive definition of ''wife'' and can claim maintenance even though she was living in adultery after the divorce to the knowledge of one and all. The other incidents and the liabilities that have to be attached to the term ''wife'' shall also follow in the event of claiming maintenance from her former husband. A divorcee cannot commit an offence of adultery as such, but if we take into consideration the inclusive definition and if we give her the status of wife for the limited purpose of claim, I do not find any difficulty to extend the same analogy to the offence that has been committed by her which may attract the ingredients of adultery, if she was not divorced. If the divorcee has to be treated as a wife, her living in adultery after the divorce also has to be taken into account. There need not be a specific provision that the divorcee is not entitled for maintenance, if she lives in adultery. What considerations have to be taken into account by applying Sections 125, 126 and 127 Cr.P.C. with regard to wife also, have to be applied in the case of a wife who claims the benefits or the advantage that accrued to her after the divorce, by virtue by Explanation (b) to Section 125 Cr.P.C. The distinction that has been made by the Kerala High Court (Full Bench) cannot be applied. When the inclusive definition is there and the right to claim arose under that inclusive definition and the wife claimed right on that basis, the offences which she committed will generally fall if she was treated as a wife also have to be taken into consideration.

In Bai Tahira Vs. Ali Hussain Fidaalli Chothia and Another, the effect of Explanation (b) to Section 125(1) of the Code was considered and it was held that it was clear that every divorced wife, otherwise eligible, is entitled to the benefit of maintenance allowance and the dissolution of the marriage makes no difference to this right under the Code.

In Sye dMukhtar Ahmed v. Smt. Moonis Fatima, 1981 All. LJ 785, the observation was to the effect that once the husband divorced his wife or the wife obtains a divorce from her husband she becomes entitled to claim maintenance from her ex-husband provided she is unable to maintain herself and the husband has neglected to maintain her. Her right to claim maintenance would come to an end only if she re-marries or lives in adultery or if she voluntarily surrenders her right to maintenance. The same view was also taken in Prakash Chandra Verma v. Smt. Prakash Watti, 1983 All. LJ 766.

In Madhusudan Mishra Vs. State of U.P. and Another, the Allahabad High Court held that the divorced wife is also entitled to maintenance provided she is unable to maintain herself and the husband is neglecting her to do so and she has not remarried or surrendered her right or is not living in adultery.

In the instant case, the divorced wife is living in adultery. The competent court at the time of granting the decree for divorce, found that she had illicit connections with many people and the tape recorded conversation with her paramour and the photographs also have been exhibited and found to be correct. A woman who suffered a decree on the ground that she was living in adultery, is not entitled to claim maintenance under the inclusive definition of ''wife'' in Section 125(1) (b) Cr.P.C. if the wife, after divorce, continued to live in adultery and if it has to be treated as an adulterous conduct, had not there be any divorce, definitely that aspect also has to be taken into consideration,

To sum up: if on facts it has come out that the wife was living in adultery and continues to live in adultery even after the divorce, she is not entitled to claim maintenance on the ground that she has not remarried. The legislature never contemplated that what normally a wife is not entitled, would be given to the divorcee the benefit under the provisions of Section 125 Cr.P.C. If a divorcee who is leading a promiscuous life approaches the court for maintenance. I feel that she is not entitled for maintenance on the basis of the inclusive (sic) of ''wife''. What normally could not have been granted in the normal course to (sic) could not be expected to be granting to a divorced wife, in whose favour a limited benefit has been conferred under the inclusive definition of Section 125 Expl. (l)(b) of the Cr.P.C.

In the result, the revision fails and it is accordingly dismissed.