BBNTA WILSON Vs. WILSON

JUDGEMENT

(1.) Petitioner wife challenges the order of the magistrate below declining maintenance to her; and claims maintenance for the children, from the date of application.

(2.) Counsel for petitioner would submit that denial of maintenance to wife was unjustified. The view taken by the magistrate is that the wife was living in adultery, and that she was not entitled to get maintenance by reason of S.125(4) of the Code. Learned counsel submitted, referring to the decision in Mercy v. Varghese ( 1968 KLT 154 ), that one or two lapses from virtue will not spell out that the woman is living in adultery. The determination cannot be on a numerical basis. It is not as if there is a limit beyond which it becomes adultery, and until then it is not. The question is whether the adulterous act complained of is a sporadic one, or whether it is a way of life with the woman. The decision cited, did not also proceed on the basis, that the determinative factor is the numerical count. It is not the number of times when the offence is committed, that determines this. For that matter, it will be near impossible in a given fact situation to ascertain with any degree of precision the number of times, the act is committed.

(3.) Back to the facts of the instant case-it is submitted by the wife herself that she and one Jayachandran were taken into custody from a hotel in Tellicherry by the police on the basis of a warrant issued by the magistrate on an application by the husband. Apparently, it had become a way of life with the wife to live in adultery. Counsel submitted that Jayachandran bad abducted the wife. There is no reason to think so and there is much less reason to think that the finding entered by the court on facts, was unreasonable or perverse. Significantly, even in her re-examination, she did not say that Jayachandran had abducted her but only says that Jayachandran was an old friend of her husband. Refusal of maintenance to the wife was therefore proper. In the light of the principles in Pathumma v. Mohammed ( AIR 1986 SC 1436 ), there is no warrant for interfering with the finding of fact,