ANANTANARAYANAN, J. - (1.) THE revision proceeding involves the simple issue of the right of a husband to have an order against him for payment of maintenance to the wife under Section 488, Criminal Procedure Code, cancelled under Section 488, Clause 5, of that section, because, according to the husband, the wife has been "living in adultery" which is a ground for rescinding the order under Section 488, Clause 5. In the present case, the husband alleged that the wife Dhakshayani (R.W. 1) was living in adultery with a certain Radhakrishnan, and that he. the husband (P.W. 1) actually found his wife and Radhakrishnan in flagrant delecto at the house of the latter. He adduced evidence of another witness for another alleged act of adultery, and also adduced the evidence of a constable, P.W. 5, to show that R.W. 1 and Radhakrishnan were residing at one time in the same house. He further relied on a document of mortgage in favour of R.W. 1 (Ex. P.4), which shows that Radhakrishnan paid Rs. 400 on behalf of R.W. 1 towards the mortgage.
(2.) THE learned Additional First Class Magistrate, Chindambaram, considered this evidence, and did not think that the evidence could be accepted as proof of "living in adultery". He did not believe the evidence of P.W. 1 or P.W. 3 that either witness saw R.W. 1 in a compromising position with Radhakrishnan. He further characterised the husband (P.W. 1) as a man with no regard for truth. Finally, he came to the conclusion that the payment of money by Radhakrishnan on behalf of R.W. 1 under Ex. P.4 was quite inconclusive, even if true, and that at the highest for the evidence adduced by the petitioner, all that can be said is that there is room for suspicion.
(3.) IT is always difficult to lay down the precise criteria of proof of the matrimonial offence, of 'living in adultery,' with regard to either spouse. As the authorities in the United Kingdom have emphasised, whether reliance is placed upon a single act of adultery or upon a course of conduct of infidelity, which the phrase "living in adultery" implies, it is very difficult, if not impossible, to prove the factum of the matrimonial offence by direct evidence. Circumstantial evidence would have to be necessarily relied upon. But the question whether the criterion of proof satisfied will obviously depend on the individual facts of the case and the manner in which the witnesses impress the, court with regard to their credibility. It is difficult to see how any rigid rule can at all he enunciated, on this aspect. In Kista Pillai v. Amirthammal AIR 1938 Madras 833 Pandrang Row J. laid down, with specific reference to Section 488, Criminal Procedure Code that the words "living in adultery" are indicative of the principle that a single lapse from virtue even if true, will not suffice, and that it must be show that the wife was actually living in adultery with some, one else, at the time of the application, which disentitles her to receive maintenance. The learned Judge observed : "Continued adulterous conduct is what is meant by living in adultery". On the facts of the present record, I am not at all clear that the evidence is so definite as to justify only the inference that the wife has been guilty of this matrimonial offence. Part of the evidence was disbelieved by the learned magistrate and, according to him the part which was accepted amounts to nothing more than a suspicion that the relationship between the wife and one Radhakrishnan might not be so innocent as the wife (R.W. 1) claimed, on the ground that this Radhakrishnan was related to her. But that kind of suspicion is by no means tantamount to proof, particularly, when regard is had to the nature of this proceeding. It is not necessary for me to further stress that there are other legal remedies open to the revision petitioner, and that he can seek to have the marriage itself annulled by a decree for divorce on the ground of the wife's matrimonial offence, if he is able to prove the offence, under the relevant provision of law.;