Decided on September 03,1952



Ramaswami, J. - (1.) This is a Criminal Revision Case filed against the order made by the learned Chief Presidency Magistrate Egmore, in an application preferred under Section 488, Criminal Procedure Code in M. P. No. 1099 of 1951 involving an important question of interpretation of the words 'living in adultery'.
(2.) The facts are--The petitioner Akilandammal is the lawfully wedded wife of the respondent M. Kanniappati. They belong to the scheduled caste. This Kanniappan was a Member of the previous Legislative Assembly. In the recent elections also he tried but failed. This Kanniappan was a detenu during the Civil disobedience movement. While he was in detention this Kanniappan had directed his wife Akilandammal to live with his mother at No. 68 Kalathi Appu Mudali Street, Choolai, Madras. The dependents of these detenus were being supported by Government. In this case under the instructions of this Kanniappan the wife Akilandammal was being given a maintenance of Rs. 15/-p. m. for two years. On this respondent coming back from Jail in 1944 he found that his wife had not been living with his mother. On enquiries he found that this Akilandammal had been living in adultery with Kapali and Venkatesa Raju alternatively. Therefore, this Kanniappan has not been maintaining her though there is evidence that he is possessed of sufficient means to do so. He is not exactly employed how but owns a house bearing No. 78, Kalathi Appu Mudali Street, fetching a rent of Rs. 50/-p. m. This Kanniappan also as a political sufferer was allotted 10 acres of land of which he has got possession of 2 1/2 acres of wet lands in Ponneri. He has also invested Rs. 500/- in a hotel at Saidapet, which has a daily sale of Rs. 40/-. He had also received a purse of Rs. 6,000/-from the handloom weavers whose Satyagrah, he organized and led. It is in these circumstances that the petitioner Akilandammal filed this petition for maintenance under Section 488, Criminal Procedure Code, The defence of Kanniappan for not being liable to maintain his wife was that she has been living in adultery.
(3.) The learned Chief Presidency Magistrate made a proper approach to the appreciation of the evidence, regarding adultery. As pointed out by Pandrang Row J. in -- 'Kista Pillai v. Amirth-ammal', AIR 1938 Mad 833 (A) followed by Somasundaram J., in -- 'Subbayamma v. Venkata Rao', AIR 1954 Mad 90 (B), where the husband made allegations, as in this case, that the wife was living in adultery and made that his defence to refuse the claim of the wife for maintenance the husband was made to begin the case and let in evidence of unchastity and the wife was allowed to rebut it. Then in regard to proof of adultery the learned Magistrate has rightly Insisted that there must be clear proof of adultery and that it is not rested upon mere suspicion as laid down in -- 'Sheikh Issake v. Biyyamunni Ummah', 2 Weir 647 (C), --'Empress v. Nandan', 1881 All WN 37 (D) and -- 'Jodhan Shau v. Mt. Kulwanti Kuer', AIR 1948 Pat 285 (E). The learned Magistrate should however bear in mind in regard to the quantum of evidence to prove adultery that though tittle-tattle and bazaar gossip will not do, direct evidence will not often be possible and that the proof which he requires is that which is set down in Section 3, Indian Evidence Act viz., that after considering the matters before it the Court either believes that adultery had been committed or considers that its factum was so probable that a prudent man ought under the circumstances of the instant case to act upon the supposition that adultery existed. The learned Chief Presidency Magistrate has in the instant case set up a standard of proof which is far in excess of the requirements of Section 3 of the Indian Evidence Act and which standard of proof is Incapable of normal adduction. I do not further develop this point as I am remanding the case and I do not wish to embarrass the Chief Presidency Magistrate in his re-appraisal of the evidence in disposing of the case beyond hoping that he would bear in mind these observations. The learned Magistrate has really rested his conclusion for granting maintenance in this case on an interpretation of the words 'living in adultery' which requires careful examination and which will be my endeavour in the next succeeding paragraphs.;

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