ATUKORALE. J., SENEVIRATNE. J. AND H. A. G. DE SILVA. J.
S.C. No. 50/85, C.A. No. 62/80.
M.C. KAIMUNAI 58228.
JUNE 13. 1986.
Maintenance-Application for cancellation of order under section 5 of the MaintenanceOrdinance.
So long as the marital tie subsists an order for maintenance made in favour of a wife willbe cancelled only if-
the wife is guilty of a more or less continuous course of adulterous conduct andnot merely isolated acts of adultery – there being a clear distinction between'committing' adultery and 'living in adultery' which is what s. 5 of theMaintenance Ordinance requires.
the wife was living in adultery at or about the time of the application forcancellation of the order for maintenance.
Cases referred to:
Wijeysinghe v. Josi Nona – (1936) 38 NLR 375.
Arumugam. v. Athai – (1948) 50 NLR 310.
Pushpawathy v. Santhirasegarampillai – (1971) 75 NLR 353.
Simo Nona v. Melias Singho – (1923) 26 NLR 61.
Manickam v. Arputha Bhavani Rajam – (1980) Cr. L.J. 354.
Kista Pillai's Case -(1938) Mad. WN 829.
APPEAL from an Order of the Court of Appeal.
S. Sinnathamby for the appellant.
Cur. adv. vult.
Respondent absent and unrepresented.
August 1, 1986.
The facts relevant for consideration of this appeal are as follows. Therespondent, who is the wife of the appellant, made an application tothe Magistrate's Court on 24.7.1 973 for an order of maintenance inher favour. After inquiry the Magistrate on 27.2.1975 ordered theappellant to pay the respondent a monthly allowance of Rs. 50 asmaintenance. The appellant appealed against this order to the thenSupreme Court which on 24.3.1977 dismissed his appeal. On9.9.1977, the day on which the parties were noticed to appear in theMagistrate’s Court for the purpose of communicating the order of theSupreme Court, the appellant moved court for a cancellation of theorder on the ground that the respondent had on 29.5.1975contracted a second marriage with one .Sathanantharajah with whomshe was living in adultery. D1 establishes the fact of registration ofsuch a marriage. It is conceded that this purported marriage is void asbeing bigamous. The oral evidence of Sathanantharajah, who testifiedon behalf of the appellant, proves that he and the respondent inconsequence of this 'marriage' lived together only for about onemonth and that thereafter in June 1975 the respondent refused to livewith him; that in July 1976 he filed a divorce-case against therespondent on the ground of her malicious desertion and that on
decree was entered ex parte dissolving the 'marriage' onsuch ground.
The appellant's application for a cancellation of the maintenanceorder was made under s. 5 of the Maintenance Ordinance (Chap. 91,Vol. IV, L.E.) as amended by Act No. 19 of 1972, the relevent portionof which reads as follows:
"5. On proof that any wife in whose favour an order has been
made under S. 2 is living in adulterythe Magistrate shall cancel
The learned Magistrate following mainly the decision of the SupremeCourt in Wijeysinghe v. Josi Nona (1) held that the appellant had failedto establish that the respondent was living in adultery at the time theapplication for a cancellation of the order was made and accordinglyrefused to cancel the order. On an appeal by the appellant the Court ofAppeal affirmed the order of the learned Magistrate and dismissed theappeal. The appellant has now appealed to this court therefrom.
Several decisions of our Supreme Court have considered andconstrued the meaning of s. 5 of the Maintenance Ordinance. Theeffect of these decisions is that where a husband seeks to cancel anorder for maintenance in favour of his wife on the ground that she 'isliving in adultery' he must, to obtain an order of cancellation, establishthat-
the wife is guilty of a more or less continuous course ofadulterous conduct and not merely isolated acts of adultery -there being a clear distinction between 'living' in adultery and'committing' adultery, vide Arumugam v. Athai (2) andPushpawathy v. Santhirasegarampillai (3). and that
the wife was so living in adultery at the time the application for acancellation of the order was made, vide Simo Nona v. MeliasSingho (4), Wijeysinghe v. Josi Nona (supra) and Pushpawathyv. Santhirasegarampillai (supra).
Learned counsel for the appellant whilst not seeking to canvass thecorrectness of this legal position sought to distinguish these decisionson the ground that they dealt with cases of isolated acts of adulteryand contended that where a wife in whose favour an order formaintenance has been made commences and continues, in pursuanceof a second though bigamous marriage, to live in adultery, for howevershort a period of time (in the instant case for about a month) with hersecond 'husband', the order in her favour is liable to be cancelled forthe reason that by her conduct she evinces an intention of finallyrepudiating all the rights and obligations flowing from her lawfulmarriage. Such a wife, learned counsel maintained, forfeits her claimto support from her lawful husband. He placed much reliance on theIndian decision in Manickam v. Arputha Bhavani Rajam (5) in supportof his contention.
In that case the husband challenged the entitlement of his wife formaintenance on the ground that she had been and was, at the time ofher application for an order of maintenance in her favour, living inadultery with his brother. The application for maintenance was filed bythe wife on 3.12.1975. There was cogent evidence to show that shelived in adultery with the husband's brother till 28.5.1975. TheMagistrate granted her maintenance on the basis that there was noevidence to show that the wife was, on the date of the application. •living in adultery since her adulterous union continued only up to28.5.1975. In revision the Madras High Court after a close scrutiny ofthe letters sent by the wife to her paramour considered it significantthat all the letters written by her were between June and'July 1975showing that she had not put an end to her adulterous conduct evenafter 28.5.1975. Further there was the evidence of the husband'sbrother himself who expressed a sustained desire to take the wife withhim and live with her. On a total consideration,of the facts in that casethe learned High Court Judge held that the husband had establishedthat his wife was leading a continuous adulterous life with herparamour and also that she was living in such adultery even,at or aboutthe time of the filing of the application for maintenance. The order formaintenance in her favour was therefore set aside. In construing theprovisions of s. 1 25(4) of the Indian Criminal Procedure Code (1 974),which corresponds to s. 4 of our Maintenance Ordinance and reads asfollows:
"No wife shall be entitled to receive an allowance from herhusband under this section if she is living in adultery…"
the court, whilst observing that the plain and ordinary meaning of thewords would seem to imply that the wife must be living in adultery atthe time she files the application, held after a consideration of previousdecisions of several Indian High Courts that the correct constructionis that the wife must have lived in adultery at or about the time of herfiling the application and not necessarily on the date of the applicationitself. In the course of his judgment the learned High Court Judgestated:
"The quintessence of all the judicial pronouncements is to theeffect that when the husband challenges the claim for maintenanceof his wife, alleging that his wife is living in adultery, the husbandought to begin his case and prove the allegation of such adulterouslife on the part of the wife by letting in evidence of her continuedadulterous conduct at or about the time of the application and thenthe wife against whom such a charge is made ought to be given anopportunity to rebut such allegation. Pandranga Rao, J., in KistaPillai's Case (6) whose decision has been oft quoted with approval,held in that case that the continued adulterous conduct on the partof the woman at or about the time of the application would meansuch conduct shortly before or shortly after the application wasmade, interpreting the word 'shortly' in a reasonable manner. Whatis reasonable would depend upon the facts and circumstances of
each case. In my opinion, it would be quite meaningless and evenabsurd to interpret the words ’is living in adultery’ in the sense thatthe husband, in order to succeed in his defence against themaintenance claim, must prove that his wife was living in adultery onthe date of the application itself."
In the circumstances of that case the period of interregnum between28.5.1975 and 3.12.1975 (the date of the application formaintenance) during which the wife was not proved to have hadsexual relationship with her paramour was not considered as havingsnapped the relationship between herself and her paramour so as tohold that she was not guilty of the act of ’living in audltery’. Nor couldthis temporary cessation of relationship between the two be attributedto the fact that the wife had returned to a life of purity or that she hadturned to a new virtuous life. The basis therefore upon which the HighCourt set aside the order of the Magistrate granting maintenance tothe wife is that there was proof'to establish that the wife was living inadultery at or about the time of the filing of the application formaintenance.
This decision far from supporting the contention of learned counselfor the appellant in the instant case seems to me to militate against it.The refusal of the High Court to grant maintenance to the wife in thatcase was founded not upon the fact that she by her adulterousconduct with another man, (whether in consequence of an illegalunion or not is immaterial) had manifested her intention of finallyrepudiating the rights and obligations attaching to the marriage butbecause she was proved to have lived an adulterous life at or aboutthe time she filed the application for maintenance. By a parity ofreasoning, both under s. 125 (5) of the Indian Code and s. 5 of ourOrdinance which warrant a cancellation of an order already made infavour of a wife, if she ’is living in adultery’, there must be proof notonly of the wife's subsequent adulterous conduct but also of suchadulterous conduct at or about the time the application is made for thecancellation of the order. It would no doubt appear to be contrary toall moral principles to grant or to refuse to cancel an order formaintenance in favour of a wife who is shown, at some stage prior tothe making of the relevant application, to have lived in adulterywhether in pursuance of a bigamous union or not. But as a propositionof law I am unable to accept the soundness of the learned counsel'scontention. That a husband should be called upon to support his wifeknowing that she has been unfaithful to him, though even on oneoccasion only, appears to be repugnant to the moral standards of oursociety. Whether it be a single act of adultery or her living in adulteryover a period of time would not make a difference for in either eventshe is guilty of a serious breach of her matrimonial obligations. Ineither event her conduct is tantamount to a_violation of the sanctity ofthe matrimonial bond. But a perusal of the provisions of ourMaintenance Ordinance, as amended, makes it quite clear that thesubsistence of the marital tie is the foundation of the Magistrate'sjurisdiction to make and enforce an order of maintenance against thehusband. As long as the marital tie continues to subsist the husband'sobligation to make payment upon the order continues. As long as thewoman's status as a wife continues, the order in her favour operates.It is only on proof that the marital tie has been legally terminated upona dissolution of the marriage that the order ceases to be operativeunless the court makes order for its cancellation in terms of s. .5 or s.10 of the Maintenance Ordinance. Proof of a repudiation orabandonment of matrimonial rights and obligations on the part of thewife by virtue of her conduct would not per se render the maintenanceorder invalid or unenforceable. To uphold such a contention wouldresult in nullifying to a large measure the jurisdiction conferred on aMagistrate's Court by the Maintenance Ordinance. S. 5 mandates thecancellation of a maintenance order made in favour of a wife on proofof the circumstances stipulated therein. In the instant case theapplication of the appellant to cancel the order was made under thissection. The learned Magistrate and the Court of Appeal quite rightlyhave refused to do so since the application was made about 2 yearsafter the respondent had ceased to live in adultery with her paramourand as such there was no proof that she was living in adultery at orabout the time of the application for cancellation. At the hearingbefore us learned counsel for the appellant drew our attention to s. 10and suggested that the facts and circumstances of the instant casemay warrant a cancellation of the order under that-section. I am unableto agree. It empowers a Magistrate to cancel an order formaintenance 'on proof of a change in the circumstances of any personfor whose benefit or against whom an order for maintenance has beenmade'. This section appears to me to deal with a situation where thereis a change in the financial circumstances of a party. This seems to bethe primary purpose of the section. But it may also empower a court toorder cancellation of an order in favour of a wife on proof that she haslost her legal status as a wife, for instance, consequent upon a decreeof divorce. A change in the legal status of the husband or wife iscertainly a change in the circumstances of either party. But I do notthink this section empowers the court to cancel an order made infavour of the wife on the basis that she has been guilty of immoralconduct at some point of time in the past even though such conductmay have manifested a repudiation by her of the matrimonialobligations so long as her marital tie subsists in law.
For the above reasons the judgment of the Court of Appeal isaffirmed and the appeal is dismissed but without costs.
SENEVIRATNE, J. – I agree.
H. A. G. DE SILVA, J. – I agree.
2-BALASINGHAM v. KALAIVANY