Decided on March 24,1965

Hukam Ghand Appellant
State Through Smt. Thuma Respondents

Referred Judgements :-



W. Broome, J. - (1.)THIS is a reference by the Civil and Sessions Judge of Tehri -Garhwal recommending that orders passed by the S.D.M. of Kirtinagar, awarding maintenance at the fate of Rs. 20/ - per month to Mst. Thuma against her husband Hukam Chand Under Section 488 Code of Criminal Procedure be quashed
(2.)MST . Thuma claimed that she had been turned out from the house by her husband in Ashoj Sambat 2019 (corresponding to early October 1962) and that thereafter she lived with her parents and her husband neglected to maintain her. The defence of the husband was that she had been leading an unchaste life even before she left his house & that the parties had mutually agreed to separate. Evidence was produced to show that the wife had misconducted herself with Soorat Chand and with Guman Singh; but this evidence was rejected by the learned Magistrate, largely on the score that it was inherently improbable. The Magistrate did, however, find that Mst. Thuma had conceived an illegitimate child after leaving her husband's house; but holding that "a single lapse from virtue" was not the same as "living in adultery", he found that CI. (4) of Section 488 Code of Criminal Procedure was not applicable, and that maintenance could not be refused on this score. Accordingly he passed the order now sought to be revised.
There can be no quarrel with the principle of law enunciated by the learned Magistrate, which receives support from numerous rulings of the different High Courts, [e. g. M.P. Subramaniyam v. T.T. Ponnakshiammal (AIR 1958 Mys. 41)]. The crucial question in the present case, however, is whether we are dealing with a single lapse from virtue or whether the evidence on record shows that there has been a continuous course of adulterous conduct on the part of Mst. Thuma. There seems to be no reason to doubt the correctness of the conclusion reached by the Magistrate regarding the illegitimate nature of Mst. Thuma's pregnancy. She admittedly had no intercourse with her husband from early October 1962; and when she was examined in court on 18.6.1963; she stated that she was in the tenth month of pregnancy, meaning that delivery was imminent; but even op to the date of the learned Magistrate's judgment (28.8.1963) no evidence had been adduced before him to show that any child had actually been born. He has justifiably presumed therefore that the pregnancy continued up to August 1963, which would preclude the possibility of conception having taken place while Mst. Thuma's husband still had access to her. It is thus undeniable that at some date subsequent to her leaving her husband's house Mst. Thuma must have had intercourse with some other person. There are of course two distinct possibilities: (1) that that intercourse was a solitary act of seduction or rape or (2) that it was part of a continuous course of misconduct or liaison. It is significant to note in this connection that Mst. Thuma has no where alleged that she was the victim of any single act of seduction or rape - -in fact the case that she tried to set up was the false assertion that the pregnancy was the result of intercourse with her husband. On the other hand the husband has adduced evidence to show that Mst. Thuma's conduct has been improper on numerous occasions. Baisakh Singh Pradhan (DW 2) claims to have seen her living in the house 6f one Guman Singh for four or five days in October 1962; and although he was unable to give any specific reply, when asked to say in what capacity she was living there, it is obvious that an adverse presumption must be drawn against her, in the total absence of any innocuous explanation to account for this conduct. Furthermore, the husband Hukam Chand (DW 1), Makan Chand (DW 3) and Kala (DW 4) claim to have seen Soorat Chand actually making love to Mst. Thuma on different occasions in the previous Bhadon or Ashoj (September or October 1%2). There may be some exaggeration in the statements of these witnesses when they claim to have seen the pair actually having sexual intercourse, but there seems to be no sufficient reason to doubt that they were found in a compromising position on those occasions. The Magistrate has chosen to reject this evidence on the ground that it would not be normally possible to see persons indulging in such acts and also because the witnesses, particularly the husband, did not raise any hue and cry; but there are obvious answers to these criticisms. It seems to me, reading the evidence as a whole, that the testimony of the witnesses appearing on behalf of the husband, coupled with the undeniable fact of Mst. Thuma's subsequent illegitimate pregnancy, entitles one to draw the inference that she had been living a life of adultery a couple of months before the maintenance application was filed Under Section 488. In such circumstances the grant of maintenance would clearly be barred Under Clause (4) of that section.

(3.)THE reference is accordingly accepted, the orders passed by the Magistrate granting maintenance to Mst. Thutna being set aside.

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