082-NLR-NLR-V-50-ARUMUGAM-Appellant-and-AHAI-Respondent.pdf
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BASNAYAKE J.—Arumugam v. Athai
1948Present : Basnayake J.ARUMUGAM, Appellant, and ATHAI, RespondentiS. C. 986—M. C. Batticaloa, 3,413
Maintenance.—Refusal by husband to pay—Wife living in adultery-—Whatmust be established—Maintenance Ordinance, s. 4-
A-person who asserts that his wife is disentitled by section 4 of theMaintenance Ordinance to receive an allowance by reason of the factthat she is living in adultery must establish that she is leading a life ofcontinuous adulterous conduct.
.A.PREAX. from an order of the Magistrate, Batticaloa.
O.Thomas, for the appellant.
No appearance for the respondent.
April 5, 1948. Basnayaee J.—
The appellant, who has been ordered to pay a sum of Rs. 10 per mensemas maintenance under section 2 of the Maintenance Ordinance, appealsfrom that order on the ground that the proof of marriage adduced by the
BASXAYAJKE J.—-Arumugam v. Athai
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respondent in support of her claim is unsatisfactory. Learned Counselfor the appellant submits that the respondent is not in any event entitledto receive an allowance under section 2 as she is living in adultery.
On the first point there is a considerable body of evidence to showthat a marriage ceremony according to Hindu rites was performed. Thedetails of the ceremony are related by the respondent, an elder of thevillage claiming the title of “ Mullaikaran ”, and the dhoby who attendedthe wedding. The appellant denies that there was any customarymarriage ceremony whatsoever. The learned Magistrate who has seenand heard the witnesses finds as a fact that the appellant and therespondent went through the marriage ceremonies detailed by the re-spondent and her witnesses. I see no reason to disturb that finding.Once a marriage in fact is established, a marriage in law is presumed.There are numerous decisions which support this view. It will besufficient if I quote the words of Lord Justice Giffard in the case ofInderun Valungaypooly Taver v. Ramasamy Pandia- Talaver 1 wherein hesays “ When once you get to this, viz., that there was a marriage in fact,there would he a presumption in favour of there being a marriage in law ”.It has been held in the case of The. King v. Perumal 2, a decision of threeJudges of this Court, that when the fact of the celebration of the marriageis established it will be presumed, in the absence of evidence to thecontrary, that all the necessary ceremonies have been complied with.
There is no evidence to support the submission of learned Counsel thatthe respondent is living in adultery. The appellant’s bare statementthat the respondent did not live in his house at any time, coupled withthe denial that he is the father of the respondent’s child, is in my viewnot sufficient to entitle the appellant to claim the benefit of section 4 ofthe Maintenance Ordinance. That section reads: “ No wife shall beentitled to receive an allowance from her husband under section 2 if sheis living in adultery, or if, without any sufficient reason, she refusesto live with her husband, or if they are living separately by mutualconsent.”
A person who asserts that his wife is disentitled by this section to receivean allowance must establish that she is living in adultery or in otherwords that she is leading a life of continuous adulterous conduct.
The appellant has failed to establish any such proof. His allegationthat the child of the respondent is illegitimate,. even if it is true, is not byitself sufficient to establish that the respondent is living in adultery.The cases of Kiree v. Naida 3, Reginahamy v. Johna *, and Mariai v. A vorai 5support this view.
Learned Counsel for the appellant has referred me to the case of MaThein v. Maung Mya Khin6. I have examined it, but find thereinnothing that helps him. On the contrary, the folffiwing passage at page68 is against him. “ Now what does the phrase ‘ living in adultery ’mean ? The word live conveys the idea of continuance, and consequentlythe phrase * living in adultery ’ in my opinion refers to a course of guilty
1 13 Moore’s Indian Appeals p. 141 at p. 158-
(1911) 14 N. L. R. 496 at p. 507.
8 (1910) 5 Supreme Court Decisions p. 28.
1914) 17 N. D. R. 376.
8 5 S.C. No. 649, P. C. Kayts 6,768 : S. C. M. 22- 9- 30.
8 (1937) A. I. R. Rang. 67.
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BASNAYAKE J.—Arumugam v. Athai
conduct and not to a single lapse from virtue The phrase ‘‘ living inadultery ” has been construed in the same sense by the High Courts inIndia as well *. It is hardly necessary for the purpose of the present caseto make specific reference to the views of the different Indian High Courts,but I shall quote the words of Pandrang Row J. in the latest of theseIndian decisions 2 wherein he says, “ The words ‘ living in adultery ’ are,in my opinion, merely indicative of the principle that occasional lapsesfrom virtue are not a sufficient reason for refusing maintenance. Conti-nued adulterous conduct is what is meant by ‘ living in adultery
The appeal is dismissed.
Appeal dismissed.
f {1904) 26 Allahabad 326.
! J (1907) 30 Madras 332.
1 (1925) A. I. JR. Calcutta 794.
_(1928) A. I. JR. JBombay 59.
2 (1938) A. I. R. Madras 833 at 834.