THANIKCHALAM PILLAI Vs. DHAKSHAYANI AMMAL,

JUDGEMENT

(1.) THE revision proceeding involves the simple issue of the right of a husband to have an order against him for payment of maintenance to the wife under Section 488, Criminal Procedure Code, cancelled under Section 488, Clause 5, of that section, because, according to the husband, the wife has been "living in adultery" which is a ground for rescinding the order under Section 488, Clause 5. In the present case, the husband alleged that the wife Dhakshayani (R.W. 1) was living in adultery with a certain Radhakrishnan, and that he. the husband (P.W. 1) actually found his wife and Radhakrishnan in flagrant delecto at the house of the latter. He adduced evidence of another witness for another alleged act of adultery, and also adduced the evidence of a constable, P.W. 5, to show that R.W. 1 and Radhakrishnan were residing at one time in the same house. He further relied on a document of mortgage in favour of R.W. 1 (Ex. P.4), which shows that Radhakrishnan paid Rs. 400 on behalf of R.W. 1 towards the mortgage.

(2.) THE learned Additional First Class Magistrate, Chindambaram, considered this evidence, and did not think that the evidence could be accepted as proof of "living in adultery". He did not believe the evidence of P.W. 1 or P.W. 3 that either witness saw R.W. 1 in a compromising position with Radhakrishnan. He further characterised the husband (P.W. 1) as a man with no regard for truth. Finally, he came to the conclusion that the payment of money by Radhakrishnan on behalf of R.W. 1 under Ex. P.4 was quite inconclusive, even if true, and that at the highest for the evidence adduced by the petitioner, all that can be said is that there is room for suspicion.

(3.) IT is always difficult to lay down the precise criteria of proof of the matrimonial offence, of 'living in adultery,' with regard to either spouse. As the authorities in the United Kingdom have emphasised, whether reliance is placed upon a single act of adultery or upon a course of conduct of infidelity, which the phrase "living in adultery" implies, it is very difficult, if not impossible, to prove the factum of the matrimonial offence by direct evidence. Circumstantial evidence would have to be necessarily relied upon. But the question whether the criterion of proof satisfied will obviously depend on the individual facts of the case and the manner in which the witnesses impress the, court with regard to their credibility. It is difficult to see how any rigid rule can at all he enunciated, on this aspect.