Decided on November 30,1967

T.MERCY Appellant


- (1.) This is a reference by the I Additional Sessions Judge of Trivandrum in M. C. 29/66 on the file of the Addl. First Class Magistrate, Trivandrum. That was a case instituted by a mother and 5 children for maintenance under S.488 Cr. P. C., The learned Magistrate found that the mother is not entitled to maintenance since she is living in adultery. Even though the paternity of all the 5 children was admitted by the counter petitioner, maintenance was not awarded to the children also, as the Magistrate is of the view that the children are being maintained by the counter petitioner himself. Learned Additional Sessions Judge has pointed out in his reference order that the few taken by the learned Magistrate is wrong in so far as the counter petitioner cannot shirk his responsibility to maintain the children on the plea that he is making occasional payments to them.
(2.) On a review of the position in all its details, I am persuaded to the conclusion that the petitioners have established a case for maintenance for all of them, i.e., for the wife and all the 5 children. In the matter of the wife, I am afraid the trial Magistrate as well as the Addl. Sessions Judge in revision, have taken a mistaken view of the expression 'living in adultery' used in S.488 of the Code. Now that this court is fully seized of the matter I would think it proper to deal with all the questions threadbare as if in a revision before this court.
(3.) The learned trial Magistrate in entering the finding that the wife is living in adultery has relied mainly on two circumstances and they are:- (i) Exs. D1 to D5 letters, purporting to have been written by one Appukuttan Nair to the first petitioner wife; and (ii) An alleged enquiry by the authorities of the S. A. T. hospital on the misconduct of the first petitioner who was a sweeper attached to the hospital. Appukuttan Nair is a cook Attached to the hospital kitchen. The allegation brought forward by the counter petitioner is that the first petitioner and this Appukuttan Nair were having illicit sexual contacts and it was in proof of such immoral conduct that the letters were produced by him in evidence. According to him, the letters were found in a box owned and possessed by the first petitioner. The allegation was emphatically denied by her. There is no knowing whether the letters were, in fact, written by Appukuttan Nair to the first petitioner. Appukuttan Nair was not cited and questioned. The counter petitioner's relationship with the first petitioner was already strained due to the fact that the first petitioner's younger sister was impregnated by him. In such a background it is impossible to believe him when he says that the letters were found in the box belonging to the first petitioner.;

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