066-NLR-NLR-V-75-PUSHPAWATHY-Appellant-and-R.-SANTHIRASEGARAMPILLAI-Respondent.pdf
Pushpawathy v. San*h iraaegarampiltai
35a
1971Present: de Kretser, J.PUSHPAWATHY, Appellant, and R. SANTHIRASEGARAMPILLAI,RespondentS. C. 1048169 — M. C. Hallakam, 13760
Maintenance Ordinance {Cap. 91)—Section 4 —“ Living in adultery
Whero a husband against whom an order of maintenance hod been made infavour of his wife sought the cancellation of the order on tho ground that,about four years after the order was made, the wife gave birth to a child whichwas not his—
Held, that the birth of the child did not, by itself; establish that the wife wasliving in adultery with someone. It only established that the 'wife hadcommitted adultery with someone, which act might well be a single lapsefrom virtue. .
354
Dfi KKETvSER, J.—Puahpawathy v. Sanlkirasegarampillai
A.PPEAL from a judgment of the Magistrate’s Court, MaUakam.C. Chellappah, for the applicant-appellant.
No appearance for the defendant-respondent.
Cur. adv. vult.
May 20, 1971. de Rretseb, J.—
The appellant in this case is the wife of the respondent. She hadsued her husband for maintenance on the ground that from September1964 he had deserted her and was living in adultery with his brother’swife. Her husband’s defence was a denial of this and an allegationthat it was she who was living in adultery with her brother-in-lawSubramaniam.
The Magistrate accepted her version and her husband was ordered topay her Rs. 35 per month as maintenance as from July 1965 and hecontinued to do so upto April 1969, when according to him in consequenceof a letter he received that she was pregnant, he moved on 11.5.69 fora cancellation of the order on the ground that she was living in adulterywith Subramaniam. His wife gave birth to a female child on 28.6.69.According to the birth certificate he was the father of the child and atthe ensuing inquiry into the application made by him, it was her casethat he was the father of this child.
The Magistrate rejected the evidence given by her and cancelled theorder for maintenance. This appeal is from that order.
The evidence of the husband at the inquiry was that he did not knowwho the father of the child was and that it was only suspicion on his partthat the brother-in-law was the father of the child.
It appears to me that the Magistrate has misdirected himself when hesays, “ whether the applicant was living in adultery or not can only beestablished if the defendant can prove the child is not his ”, for assumingthe defendant satisfied the Magistrate, as it turned out he did, that thechild was not his—a finding of fact, the correctness of which I havemisgivings on—that does not establish that the applicant is living inadultery with someone. It only establishes that she has committed•adultery with someone which may well be a single lapse from virtue.
In the case of Wijesingha v. Josi Nona1 Abrahams C.J. said, ”… . Theissue was whether in terms of section 6 of the Maintenance Ordinancethe wife was living in adultery. The words of the section are plain, ‘ Onproof that any wife in whose favour an order has been made …. is
living in adulterythe Magistrate shall cancel the order.’ The
meaning is equally plain : the wife at the time that the application forcancellation of the order was made must bo cohabiting with some other
1 (1030) 38 N. L. R. 375.
Silva v. ICaronchifiamy
355
man or living a life of promiscuous immorality. Manifestly all that theappellant in this case could have proved, if the case had been heard out,was that the child was not his, and inferentially that his wife had abouta year previous to his application committed adultery with some man.He could not have proved thereby more than a single act of adultery,and if he could have done, he could not have proved that the adulterywas going on at the date of his application. This is not the first case ofits kind. The cases of lsabdahamy v. Perera and Rammalhamy v.Appuhamy have been cited on behalf of the respondent. This case doesnot seem to me really to need any authority, for the words are too plainto require interpretation.”
That it is continued adulterous conduct that is meant by living inadultery is the conclusion that Basnayake J. in Arumugam v. Athai1arrived at when no was considering the meaning of the phrase “ livingin adultery ” and he quoted with approval from the case of Ma Theinv. Maung Mya Khin2, *' Now what does the phrase living in adulterymean ? The word live conveys the idea of continuance and consequentlythe phrase living in adultery in my opinion refers to a course of guiltyconduct and not a single lapse of virtue.” He also quotes the words ofPandrang Row J. in 1938 A. I. R. Madras, at p. 834, where he says,“ The words ‘ living in adultery ’ are; in my opinion, merely indicative. of the principle that occasional lapses from virtue are not a sufficientreason for refusing maintenance. Continued adulterous conduct is whatis meant by ‘ living in adultery ’. ”
The appeal is allowed with costB.
Appeal allowed.