JUDGMENT : Misra, J. - On 17-2-1964, Niladri Dei (opposite party) filed an application u/s 488, Code of Criminal Procedure against Madan Mohan Rai (Petitioner) alleging that she was his legally married wife. Two daughters had been born of their wedlock. The elder daughter died while she was a child. The other daughter Shobha has been given in marriage. For three years the Petitioner has been neglecting to maintain her and she has no means to maintain herself. The Petitioner assaulted and drove her out of the house. He married a second wife named Kanaka. On the aforesaid allegations, maintenance of Rs. 60/ - per month was claimed. The Petitioner filed a written statement admitting the birth of two daughters. He, however, denied the marriage and stated that Niladri was his concubine. It was alleged that she had illicit connection with Debananda Rai and w and residing with him as a concubine. She left the house out of her own accord. The Petitioner made several attempts to persuade her to come back, but she refused saying that she was the concubine of Debananda. 2. The learned Magistrate recorded the following findings: (i) Niladri was Petitioner's married wife. (ii) Niladri was not living in adultery with Debandanda, though she was residing with him. (iii) Petitioner had means to pay maintenance to Niladri Rs. 30/ - per month. No finding was recorded whether the Petitioner married Kanaka and whether Niladri was assaulted and driven out. Against the order of the learned Magistrate granting maintenance Rs. 30/ - per month, this Revision has been filed. 3. The following findings and facts are not disputed: (i) Niladri was the married wife of the Petitioner who has married the second wife Kanaka one year before the date of trial which took place in October,1964. (ii) The quantum of maintenance is not high. (iii) The mother of Debananda and mother of the Petitioner are two sisters and Debananda is older in age than the Petitioner. (iv) For about one year before the trial, Niladri was living in the house of Debananda. (v) There is no satisfactory evidence that Niladri was assaulted and driven out. 4. Mr. Das contends that Debananda is a man of bad character and Niladri left Petitioner's house voluntarily and was living in adultery with Debananda for the last three years. (iv) For about one year before the trial, Niladri was living in the house of Debananda. (v) There is no satisfactory evidence that Niladri was assaulted and driven out. 4. Mr. Das contends that Debananda is a man of bad character and Niladri left Petitioner's house voluntarily and was living in adultery with Debananda for the last three years. That Debananda had a number of concubines at different times is amply proved by the materials on record. Niladri admitted in her depositing that she left the house of her husband three years before. Out of this period she lived with her daughter for two years and for the last one year she was residing with Debananda. The consistent evidence of all the witnesses for Niladri is that she was living with Debananda for one year. The witnesses are straight forward and have stood cross-examination. The evidence of the witnesses for the Petitioner was rightly rejected by the trial Court. The conclusion therefore is that about a little more than two years before the filing of the petition Niladri left the house of her husband. For a period of about two years she lived with her daughter and' for 3 to 4 months before the filing of the petition she resided in the house of Debananda. 5. On the evidence of p.w.3 who is a close relation of Debananda, Mr. Das contended that Niladri is living in adultery with Debananda. The relevant portion of the statement may be extracted. 1 cannot say if Debananda has kept the Petitioner for the last one year but the Petitioner is in his house for the last one year. (Deposition was given on 11-12-1964), Yesterday I slept in the room of my grand-daughter Debananda slept in a different room. The Petitioner slept in the room allotted to her by Debananda. The Petitioner's room is near the cowshed. Debananda slept at a distance of five feet from the Petitioner yesterday. Debananda also slept in that very room; The place where they slept is same. I do not know where Ganduni slept yesterday. The Petitioner slept in the room allotted to her by Debananda. The Petitioner's room is near the cowshed. Debananda slept at a distance of five feet from the Petitioner yesterday. Debananda also slept in that very room; The place where they slept is same. I do not know where Ganduni slept yesterday. Section 497, Indian Penal Code defines 'Adultery, - Whoever has sexual intercourse with a person who is and whom he knows or has reason to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor Thus under the Indian Penal Code, a married wife cannot commit adultery or the abetment thereof. The term 'adultery' is therefore to be understood in the light of social ideas of the community as being a serious breach of matrimonial tie (See M. Kanniappan Vs. Akilandammal, . 7. The next question is what should be die nature of evidence required for proving 'adultery'. By the very nature of the offence, direct evidence of adultery may not be available. That does not, however, mean that mere bazar gossip or hearsay would prove adultery. There must be some evidence showing opportunity and desire to commit the offence or access by the man to the woman (See Jadhan Sahu Vs. Mt. Kulwanti Kuer, . The evidence must satisfy the requirement prescribed in to definition of the word 'proved' in Section 3 of the Evidence Act. A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. 8. Applying the aforesaid tests, it must be held that when Niladri slept in the same room in the night at a distance of 5 feet from Debananda without anybody else sleeping, they had sufficient opportunity and desire to commit adultery and there was access by the man to the woman. The fact that Debananda is Dedhasura (husband's elder brother) of Niladri is wholly immaterial. The fact that Debananda is Dedhasura (husband's elder brother) of Niladri is wholly immaterial. According to social custom, the younger brother's wife does not appear before the elder brother. But when admittedly they slept in the same room in the night, the custom of non-appearance does not militate against the strong probability of their having sexual intercourse during the night. Debananda is a person of ill-reputation and had a number of concubines one after another. In fact by then he had a concubine named Ganduni. 9. By the date of the application (17-2-1964), the husband had contracted marriage with Kanaka. u/s 488(3), Code of Criminal Procedure if a husband has contracted marriage with another wife or keeps a tress it shall be considered to be just ground for his wife's refusal to live with him. If Niladri is found not to be having adultery, then on the ground of second marriage alone, she would have been entitled to maintenance. 10. Two important questions arise for determination (i) Was Niladri living in adultery with Debananda on or about the date of the application? (ii) If she was not living in adultery, is the Court bound to grant her maintenance, if she is found to have an act of adultery about 8 months after the filing of the application? 11. Section 488(4), Code of Criminal Procedure lays down that: No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, ... ... ... The expression 'living in adultery' does not connote either a single act of adultery or even several such isolated acts. It means the following of a course of continuous adulterous conduct. The principle is that occasional lapses from virtue are not a sufficient reason for refusing maintenance. The husband is absolved from the obligation to maintain his wife when she has a 'de facto' protector, i.e., with whom she lies and by whom she is maintained as if she were his wife. The obligation of a husband to maintain his wife arose from the anxiety of the legislature to protect deserted wives from the bitter necessity of earning and living by trading of their sex. That obligation, however, ceases when it has been voluntarily assumed by some man other than the woman's husband. No woman can fairly claim a right to be kept by two men. That obligation, however, ceases when it has been voluntarily assumed by some man other than the woman's husband. No woman can fairly claim a right to be kept by two men. The approach to Section 488 is relieving of destitution (See M. Kanniappan Vs. Akilandammal, . 12. Judged by the aforesaid tests there is no proof that Niladri had any act of adultery much less a course of continuous adulterous conduct with Debananda at or about the date of the application, that is to say shortly before or shortly after the application was made interpreting the word 'shortly' in a reasonable and liberal manner. (See Kista Pillai Vs. Amirthammal. From the facts that Debananda is a man of objectionable character, that Niladri resided in his house for a period of about 5 months prior to the filing of the application and that she had an act of adultery about 8 months after the filing of the application do not establish that she had a course of continuous adulterous conduct. Debananda is one of her near relation. After living for a period of two years with her daughter, she came to resides with him for a short time before the filing of the application. Though acts of adultery may be taken into consideration if committed shortly at the time of the filing of the application, instances are not rare that mutual obligations develop out of gratitude after a person gives shelter to a destitute woman for a long time. In the absence of any other important circumstances it would not be reasonable to infer from one act of adultery 8 months later that she was living in adultery at or about the time of the application. 13. The further question for consideration is that even if Niladri was not living in adultery with Debananda is the Court bound to grant her maintenance once it comes to its notice that a subsequent act of adultery has been established? 13. The further question for consideration is that even if Niladri was not living in adultery with Debananda is the Court bound to grant her maintenance once it comes to its notice that a subsequent act of adultery has been established? Section 488, Code of Criminal Procedure lays down that: (1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate or a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child at such monthly rate, nor exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time direct The word 'may' indicates that a discretion vests in the Magistrate and as such even if all the necessary conditions are satisfied the Court may take other facts into consideration in refusing to grant maintenance. For instance there may not be a course of continuous adulterous conduct on the part of the wife, but she is proved guilty of adultery with a low caste man leading to her expulsion from her caste. It becomes impossible for the husband to take the wife back without himself losing the caste. Though this is a case of the wife 'not living in adultery, the Court should refuse maintenance. 14. It may, however, be made clear that the Petitioner has successfully established that Niladri had an act of adultery with Debananda about 8 months after the filing of the petition. It is open to the Petitioner to file an application u/s 488(5), Code of Criminal Procedure to cancel the order granting maintenance on the ground that she is living in adultery with Debananda on the basis of materials subsequent to October, 1964 which are not the subject matter of this application. 15. The onus is on the husband to establish that the wife is living in adultery. The husband is to begin his case and the wife is to be given opportunity to adduce rebutting evidence. Even though the wife began giving evidence first the Petitioner has failed to bring to the notice of the Court any redeeming circumstances whereunder the Court in exercise of its discretion can refuse maintenance. 16. The husband is to begin his case and the wife is to be given opportunity to adduce rebutting evidence. Even though the wife began giving evidence first the Petitioner has failed to bring to the notice of the Court any redeeming circumstances whereunder the Court in exercise of its discretion can refuse maintenance. 16. On the aforesaid discussion, conclusion is irresistible that the Petitioner has failed to establish that Niladri is living in adultery with Debananda. The lower Court rightly granted maintenance. 17.The revision fails and is dismissed. Final Result : Dismissed