N SUBHAYYA Vs. BHAVANI

JUDGEMENT

(1.) The plaintiff sues for a declaration that he is not bound to provide maintenance for his wife. The defendant has been since 1903 living in her parents house, and in October 1907, a little less than a year before the suit, she gave birth in that house to a child which is found by the Courts below to be illegitimate, her husband having had no access to her. She has, it is stated, offered to return to her husband s house, but he, we are informed by his Vakil, is unwilling to receive her.

(2.) The second issue framed by the District Munsif is, whether the defendant lives in adultery and the finding on that issue is in the affirmative and is accepted by the Subordinate Judge. But we find ourselves unable to accept this finding, because the judgment of the District Munsif shows that it is based only upon the evidence that the plaintiff is not the father of the defendant s child. There is other evidence in the case, hut the District Munsif seems to have thought it unnecessary to consider it, and the Subordinate Judge does not refer to it, and though the Courts may have been entitled in the circumstances to draw from the mere fact that the defendant has given birth to an illegitimate child the conclusion that she was at the time of the suit living in adultery, neither of them deals with the matter in this way : both seem to consider that the defendant having been guilty of adultery once may be held, without further evidence, to be living in adultery. That is not so, and we cannot accept the finding as it stands.

(3.) As to the law, it is contended that the plaintiff is not bound to maintain his, wife if she has been unchaste. In Kandasami Pillai v. Murugammal 19 M. 6. Subramania Aiyer, J., formulates a rule which he says may be safely laid down even in the case of a wife, that no maintenance should be awarded if it appears that about the time of the litigation the woman persists in a vicious course of life.