T MERCY Vs. V M VARUGHESE AND STATE

JUDGEMENT

(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:-