C.

1. This is an appeal by the wife defendant in a suit by her husband for a declaration that she is not entitled to maintenance. The suit was dismissed by the learned Munsiff, but the first appellate Court passed a decree in the husband's favour.

2. The points for decision are the following: Firstly tile form of the suit by the husband after the Magistrate ordered maintenance under Section 488, Cr.P.C. Secondly, whether the court-fee should be ad valorem as required by Section 7(2) and Section 7(4) or as for declaration under Article 17(iii), Schedule 2, Court-fees Act. Thirdly, on the merits whether the husband has succeeded in proving the wife's disqualification on the ground of her living in adultery.

3. The facts of the case are the following : The plaintiff Ayodhya Prasad Brahmin had married the defendant appellant about 10 years before the present suit when both were children. After she came of age she used to stay sometime with her parents and sometime at the plaintiff's village house, which is in charge of his brother, karta of the family. The husband is a student in a Sanskrit School at Rewa; where in addition to study he seems to have been also a temple priest. Naturally he would be going to his house now and then and at all events during summer vacation, which is usually from Chait to Jeth. The plaintiff, however, stated that in the Baisakh and Jeth of Sambat 2005 i.e. about two years before the suit he did not go home at all. The girl was brought from her brother's house to her sasural according to the plaintiff in Chait or Baisakh 2005, let us say, in March 1948. She stayed for 2 or 3 months and went back to her parents' house in Jeth, where she gave birth to a child in Kartik. The child died immediately or soon after. The husband made up his mind that it was an illegitimate child and did not take back the wife, and soon after married another. Then this first filed an application before the Magistrate Rewa under Section 488, Cr.P.C., for maintenance; the husband's defence that she had been living in adultery was not accepted, and an order for maintenance at Rs. 10/- p.m. was passed. Then the plaintiff filed this suit, the plaint of which is somewhat vaguely worded; in effect the plaintiff wanted a declaration that the first wife was not entitled to maintenance as she had been living in adultery (Bivchar men jiwan britit kar rahi hai). This declaration having been granted by the first appellate Court the wife defendant has come up in second appeal to this Court.

4. Point No. 1. The first question is whether a suit of this nature can be filed at all, and if so, in what form. A Magistrate acting under Section 488, Cr.P.C. is primarily interested in providing for a possible vagrant, so as to stop the chances of immorality leading to crime; he is not directly concerned in deciding on the rights-of the parties. This is within the province of the civil Court which should make a fuller investigation of the status and personal rights of the parties than the criminal Court has to do. All the same it is not sitting in judgment over the Magistrate, so as to decide if he should have made the order under Section 488, Cr.P.C. Therefore, that Court cannot entertain a suit for the relief that the Magistrate should not have passed the order, or that the order should be set aside, or that there should be an injunction upon the realisations under the order; but the party can seek a declaration about the status of the parties, or a disqualification which under the personal law of the parties would disentitle the defendant to get maintenance irrespective of the Magistrate's opinion in the criminal proceeding. The disqualification of living in adultery is one both under Section 488, Cr.P.C., and under the Hindu Law; but it operates in different ways. The Magistrate will not grant maintenance to a wife who lives in adultery, because the evils of the vagrancy which the law wants him to prevent have already occurred. On the other hand, when the civil Court holds that the woman is living in adultery, it finds that she divested herself by her own conduct, of the right to maintenance she is otherwise entitled to under, her personal law.

5. As already noted the wording of the plaint in this suit is somewhat unconventional and loose, but like the lower. Courts I also take it as a suit for declaration that this woman, who is admittedly the plaintiff's first wife, has divested herself of her right of maintenance by living in adultery. By proving his case the plaintiff can get a declaration that the woman has lost her right of maintenance, but not that the Magistrate's order was illegal; but armed with that declaration, he can approach the Magistrate under Section 489, Clause (2) Cr.P.C., and get the order cancelled or modified as the case may be, so as to accord with the decision of a competent civil Court. In laying down these principles I am guided by the case law in Mahomed Abid Ali v. Ludden Saheba 14 Cal 276 (A); Deraje Malinga v. Marati Kaveri 30 Mad 400 (B); Narayanan Moosad v. Itticherry Amma AIR 1918 Mad 431 (C); Nga Po Thein Ma v. Me san AIR 1922 U B 20 (D).

6. Point No. 2. The second question is whether a suit of this nature is taxable ad valorem i.e., on the ten years value of the maintenance charges or whether it is taxable under Article 17(iii) to Schedule 2. When a person sues for maintenance at a particular rate, whether or not she has already been refused maintenance by the Magistrate under Section 488, Cr.P.C., she is clearly making a money claim, whose value for purposes of taxation can be assessed in the manner given in Section 7, Court-fees Act, On the other hand, when a Magistrate having ordered maintenance, the husband or father comes to the civil Court, he does not exactly ask for the cancellation of a specific monetary liability. In fact, he cannot ask the civil Court to hold that the Magistrate acted illegally or that he should have ordered maintenance at a lower rate. What he can urge is that there are circumstances which entitle him to a declaration that the person concerned is not his wife or child or that the right to maintenance has been lost by her or his own conduct. In such a case it is a suit for declaration about status or a disqualification. It is only by a subsequent proceeding under Section 489(2), Cr.P.C., that it is made effective on the liability to pay money. Therefore, it is understandable and logical that such suit is not to be taxed ad valorem, but under Schedule 2, Article 17, Clause (iii) of the Act, and the appropriate local amendment, if any, to that Article. A third case arises where the maintenance being fixed by a decree there is a suit for reduction. Here also it has been held that the suit should not be taxed ad valorem, while one for the increase in the maintenance should be so taxed. Whether this is not illogical has been answered in Rajammal v. Thyagaraja Ayyar AIR 1935 Mad 655(E), and Narayan Gopal v. Gitabai Marutlrao AIR 1945 Nag 264 (F); analogies are out of place when the statute itself prescribes a particular mode of taxation whether or not it is logical. At all events, it is quite logical in a case like the present one that the court-fee should be as for a declaration and not ad valorem. Therefore, the court-fee paid in the lower Courts is sufficient.

6a. Point No. 3. The defendant being admittedly the married wife of the plaintiff It is for him to prove, firstly, that he could not have had access to her at the time she had conceived the child that was delivered in Kartik 2005, and died immediately or soon after. Secondly, that this is not an Individual and isolated instance of a moral lapse on her part but a part of a systematic course of conduct that amounts to living in adultery; thirdly that she is impenitently continuing in the same course of living. An examination of the evidence shows that the plaintiff has not proved any of these three ingredients, (a) The plaintiff and this young woman were married about 10 or 12 years before this suit was brought. For some years naturally no question of conjugal relationship arose. Later on the woman used to be brought to the plaintiff's house incharge of his elder brother.' During the period in question that is early in 1948 (2005) about 3 years before the suit, she had been for some time with her parents and then she had come to her sasural. She says that it was in Magh or Phagun while the plaintiff says it was in Chait. Whether it was in Magh or Phagun or a month or two later the wife did come to the sasural and did stay there at least for two months. The plaintiff makes out that even when she came, there were signs that she was pregnant, and that his brother wrote about it. If this is correct, then there was already a serious charge against this woman; it is difficult to understand how in spite of it plaintiff's brother looked after her for 2 or 3 months. It is also significant that the 2 months' period during which she admittedly stayed in her sasural was exactly the period when the plaintiffs school was closed for summer vacation. If indeed he had received such a letter that his wife was already pregnant at her parents' house, where he had never been, then he would certainly have taken her or her parents' explanation or convened a panchayati or asked her to be sent back immediately from her sasural. He did none of these things. That the plaintiff and his brother, had been corresponding is certain beyond doubt but the question is whether in any of the letters written about Chait 2005 the brother reported that the defendant was already pregnant. If there was any such letter; it was the best evidence in this case but has not been produced at all. Questioned about this the plaintiff says "I. cannot say whether this letter of my brother is with me now". Obviously there was no such letter.

7. Again, it is difficult to believe his story that living not far away from his village, and having opportunity to come especially during the vacation the plaintiff never went home in that summer. If there had been an allegation of adultery and pregnancy, the plaintiff might not have cohabited with his wife; but that not being proved, one cannot accept this most improbable story. If the plaintiff and his brother had found that the woman was pregnant they would certainly not have allowed her to stay in their village house for about 2 months. On the other hand if the signs of pregnancy became apparent two months later, she would certainly have been sent back to her parents' house for better care during pregnancy, especially as she was not wanted in the sasural, after the plaintiff's return to Rewa after the summer vacation. This also shows that at the time of her coming to the sasural there was no suspicion of pregnancy. The statement of the three other P.Ws. is pure hearsay based on gossip and on rumours, and should not have been taken into evidence. Evidence about adultery cannot be direct, but the movements or action on the part of the woman from which adultery is Inferred, should be deposed to by those who actually saw them. For example P.W. 2 says:

Even 4 or 5 days after the plaintiff's brother brought the wife to the village the village women began to say that she was pregnant.

This is not evidence unless the village women come and depose to the signs and conduct from1 which they thought that she was pregnant. Incidently, he makes her stay for a duration of 15 days while other witnesses state that she stayed in the sasural for 2 months. He also has only heard from others that she was pregnant. The last witness says, that the woman was one of bad morals, because she used to go alone to the fields to collect fodder. Thus we have really no evidence that the woman was already pregnant when she came to her sasural in Chait 2005. As against it, the defendant's evidence is that she went back to her sasural and during her stay there the husband used to come to her. This is supported by 3 witnesses, and is in any case most natural. Moreover, the presumption of legitimacy, is so strong that it is for the husband to prove that it was physically impossible for him to have cohabited with his wife during the time in which the child was conceived.

8. Kartik when the child was born is about 7 or 8 months after her going to the sasural: if her own statement is accepted that it was 8 or 9 months. It is also common ground that the child died soon or immediately after though there is no observation or medical evidence about its growth. The premature birth of a child in 7 months is not at all uncommon; In fact the child's death immediately or soon after makes it very probable that it was a premature arrival. Not understanding this, the husband and his friends, very rashly in my opinion, formed the opinion that the child had been conceived about 9 or 10 months before i.e., to say even 2 or 3 months before she came to the sasural. From this to rumours, and its source, imagination, it is only a single step. If a witness had seen her alone collecting fodder in the fields he made up his mind that she was immoral. If a village woman, thought, that even an immature child could not arrive within 7 months, she began to talk that she had seen signs1 of pregnancy even when the girl came to her sasural. Feeling that this sort of evidence might not satisfy a Court, the plaintiff thought of introducing the story of an imaginary letter by his brother.

I, therefore, hold that the plaintiff has failed in his attempt to prove that the child that was born and died in Kartik was not conceived to him.

(b) Even supposing a child had been conceived in adultery, by itself it is insufficient to hold that she "lives in adultery" and cannot get what is called bare maintenance. The law does not compel the husband to take back and give conjugal rights to a wife who has committed one act of adultery, if he is not prepared to forgive her. But the law can compel him to grant maintenance on the scale of bare subsistence where the lapse is a single isolated one, and also where, even after a systematically impure life, the woman has shown complete repentance. Bare maintenance in these circumstances is not equivalent to a Restoration of her status and the washing away of the stain of adultery, but a requirement in the interest of public policy by Hindu Law which in its orthodox form, practised by the higher castes, does not allow divorce, and treats marriage as an indissoluble sacrament. A plaintiff, who alleges that the defendant "lives in adultery" has to prove a course of conduct over some period with repetition of adultery, with the same or more than one person. Between an individual lapse, and life as a common prostitute, there are gradations of increasing impurity; where exactly the occasional lapse deepens into a "life in adultery" is a question of fact depending upon the repetition and the brazenness of the conduct, the signs of remorse, and readiness to turn back; but it certainly begins at a stage below the first lapse. Even if the plaintiff's own story is accepted, we have nothing more than a single act on the part of the defendant.

(c) The learned S.J. holds that there is no evidence of complete repentance, this is true, but that question does not come in here. That would arise only after "life in adultery" is proved;

9. Thus even on the impression and the belief of the plaintiff there was a case for maintenance on the scale of bare subsistence.

10. The facts show clearly that the whole thing was the result of an unfortunate belief on the part of the plaintiff, that no child can at all be born in seven months; and that even though the child died immediately and soon after, it must have been conceived about 9 or 10 months before its birth. Without consulting doctors, and ascertaining definitely, whether the child did not have patent signs of incomplete growth, he rushed into a second marriage, and put aside this wife. He was not entitled to a declaration that the defendant, who is his married wife, she has by her conduct disqualified herself for it.

11. The result is that this appeal is allowed and the judgment and decree of the first appellate Court are set aside and the suit dismissed with costs to the defendant throughout and pleader's fee for each Court at 7 per cent.