r 48ft )
Present : l)e ftmiipnyo *1.
EBERT r. EBERT.
I C. Kalutara. oi.lU.
Maintenance—Husband tiriiuj in adult erij—Change *•/ eouduri—Appli^i*Han to revise order for mainlentniet*—Ordinance N>>. 19 of J &$.*>,
Where n (,'oiiri has one* granted maintenance 😮 a wife* on theground that her husband is living in ediillery, ii has no authorityto revise such opder under section 6 of the Maintenance Orclinonw.on the ground that the. husband has craned to live in adultery-
PPLICATION to revise proceedings before tin- Police Magis-
trate of Kalutara. The petitioner sued lier husband, the
respondent for maintenance for herself and her child oil December3, 1920? whereupon the respondent offered Vo maintain her, if she.would live with him. $he refused to do so. on the ground that therespondent was living in adultery. It was found by tlu* PoliceMagistrate that the respondent was living in adultery with th«person named, and the respondent was ordered to pay maintenance.After several attempts to reduce maintenance, the respondentmoved before the Police Magistrate to vacate the order for mainte-nance by serving a notice, on the petitioner to show cause whyshe should' continue to refuse unreasonably to live with him. Jnan application to vacate the order for notice, the Police Magistrateheld that if the respondent is not now living in adultery and is norguilty of other misconduct, the original order may be cancelled.
Driebergt K.C., with him Soertsz, for petitioner.
H. V. Pervra. for respondent.
March-27, J925. De Sami>ayo -J.—
This is a maintenance case instituted by the petitioner againsther husband, the respondent, applying for maintenance for herselfand her child. At the trial on December 1920.. the respondentoffered to maintain his wife if she-would come and live with him.This the petitioner refused to do, on the ground that the respondentwas living in adultery. It . was after full investigation foundby the Police Magistrate that, the respondent had lived in adulterywith the person named, and this finding was rxpresslv uplndd
( 409 )
by the Supreme Court in appeal. The respondent was then employedin the Government ‘Hailway, and was in the receipt of salary andallowances amounting to about Es. 500 a month, and the PoliceMagistrate ordered him to pay Rs. 100 a month for the maintenancent the petitioner and the child. Subsequently, the respondentretired from Government service on pension, and he then appliedthat the amount of maintenance be reduced. On June 21, 1924,the amount was by agreement of parties reduced to Rs. 80 a month.Later the respondent applied that the amount be ^further reducedto Rs. 40 a month, but this was refused by the Court. This wasnu October 14. 1924. The respondent's next attempt to relievehimself of the entire liability to pay maintenance was to apply'for and serve a notice on the petitioner to show cause 4< whjr sheshould continue to refuse unreasonably and without sufficientgood cause or reason to live with her legally married husbandwho lias his permanent residence now at Ka-lutnra." The petitionershowed cause by submitting that, in view of the original finding■of rlie Court in respect of adultery, the respondent could not beallowed to revise the question of the petitioner's refusal to livewith the respondent, and xnoyed that the order issuing the noticemay be vacated. The Police Magistrate refused to vacate the■order, and -fixed the matter for inquiry. The petitioner now appliesthfrt the proceedings in this connection be revised.
The Police Magistrate's view is that if the respondent is not nowliving iii adultery and is not guilty of other misconduct, which■should, be the matter for inquiry, the petitioner would have no*' sufficient reason " for refusing tq live with her husband withinthe meaning of section 6 of the Maintenance Ordinance. 1889* andthat the original' order for maintenance would under that sectionbe liable to be cancelled. The question is whether this view is*ight. The entire section 6 is as follows: —
On proof that any wife in whose favour an order has beenmade under section-o is living in adultery, or that withoutsufficient reason she refuses to live with her husband, or thatthey are living separately by mutual consent, the Magis-trate shall cancel the order."
There is no direct authority for the Police Magistrate's ruling,and the question has to be considered on, principal. It will benoted that the sentence whieff<ns italicized, and which is saidto' be an alternative to the wife herself being guilty of adultery,is in very general terms, and does not refer .to change of conducton the husband’s part, thus leaving the wife without auv sufficientreason to refuse to return to him. If this was intended, I shouldhive expected the Ordinance,to provide for it more clearly. Further.
expression *.* without sufficient reason " may well refer tomatters other than adultery. For instance, under section 4 a
( 440 )
, Db SaSCPAYO
wife’s refusal to live with the husband cun be justified if the husband44 has habitually treated, his wife with cruelty.” And if the husbandhas reformed in this respect, as he may well, change his “ habits!"the wife would then have no “ sufficient reason" for her refusal.But adultery is quite a different thing, and other considerationsapply to it. I might say here that, as I understand the judgmentsof the Police Magistrate' and of this Court- in appeal, the respondenthad committed not one act of adultery, but- pursued a course ofconduct' amounting to * 4 living in adultery/* The stain of adulterycannot be oblierated by reform, nor can a wife be expected tooverlook the fact in regulating her own life. Adultery strikesat the root of the marriage relation, and its consequences, both legalapd social continue. Of course, a wife may condone the misconduct,whether it be one act or a series of acts of adultery. But condona-tion must be voluntary. The present effort of the respondent is ineffect to compel the petitioner to condone bis offence, and in thisconnection I do not think the date of the offence makes any difference.In my opinion the words of section 6 do not enable the Court toforce the unwilling wife to cohabit with a once guilty husbandor lose her right to maintenance.. I think, therefore, the noticeissued on the petitioner at the instance of the respondent shouldhave been discharged for lack of any legal justification, and thePolice Magistrate should not enter into any . inquiry on the subjectof the present conditipn of life of the respondent.
Acting in revision I quash the order and proceedings in question.
EBERT r. EBERT