Das, J.These two petitions in revision have been heard together. One of the petitions is by the husband and the other by the wife. The point raised by these petitions is a very short point, namely, if Mt. Kulwanti Kuer, the wife, is living in adultery so as to disentitle her to maintenance from the husband, Jodhan Sahu. This, however, is one of those cases in which a long story has to be told in order to appreciate and decide a short point. I must, therefore, tell the long story first before I proceed to decide the point raised.

2. The story is as follows: Mt. Kulwanti Kuer was originally married to the elder brother of Jodhan Sahu. After the death of her former husband, she was married to Jodhan Sahu. This is not in dispute. By Jodhan Sahu she had at least two children before 1927, namely, a girl called Shanti Devi and a boy Lattu, who subsequently died. In 1927, Mt. Kulwanti Kuer applied for and obtained an order of maintenance under the provisions of Section 488, Criminal P.C. The order in her favour was passed on 31st May 1927, and was to the effect that Jodhan Sahu should pay her a Bum of Rs. 15 per month and 5 seers of rice per day. It appears that Jodhan Sahu had also another wife, and Jodhan lived with that other wife and her children in one house whereas Mt. Kulwanti lived with her children in an adjacent house. Mt. Kulwantis case was that Jodhan agreed to maintain her and continued to maintain her till about 1944 when fresh differences arose between the parties. On 15th February 1945, Mt. Kulwanti Kuer made an application for the issue of a distress warrant for arrears of maintenance for about 11 months from February 1944 to January 1945. This application was objected to by the husband on various grounds, with which we are not at present concerned, by a petition dated 3rd March 1945. On 12th April 1945, Mt. Kulwanti Kuer filed another application to the effect that the maintenance allowance should be enhanced because another son of the name of Bigan had been born to her by Jodhan in the year 1936 and she had to maintain that child as well. On that very date, that is 12th April 1945, Mr. Robertson, the then Sub-divisional Magistrate, passed an order in favour of Mt. Kulwanti Kuer allowing her maintenance for the period in question but reducing the rate by one-third of the original order of 31st May 1926. This order of 12th April 1945 may be conveniently described as Mr. Robertsons order in favour of the wife. In the operative part of Mr. Robertsons order, there was some mistake of calculation, and this was corrected on 5th May 1945, by Mr. Sarkar, the successor-in-office of Mr. Robertson. Against Mr. Robertsons order as modified by Mr. Sarkar, there was an application in revision to this Court by the husband. The application was disposed of by Beevor J., and this Court refused to interfere with Mr. Robertsons order as modified by Mr. Sarkar.

3. Then on 23rd April 1945, the husband made an application with two prayers (a) for vacating the order of maintenance under Sub-section (5) of Section 488, Criminal P.C., on the ground that the wife was living in adultery, and (b) for a reduction of the rate of maintenance on various grounds. In this application of the husband an objection was made by the wife. On 29th May 1945, the then Sub-divisional Magistrate made an order reducing the rate of maintenance to half of the rate fixed by the original order of 31st May 1927. Against this order of the learned Sub-divisional Magistrate reducing the maintenance to half, there were an application in revision and also a reference, as both the husband and the wife were aggrieved by this order. The application in revision and the reference were disposed-of by Imam J., who by his order dated 22nd January 1946, set aside the order of the learned Sub-divisional Magistrate reducing the maintenance to half and remanded the case for a fresh hearing after the parties had an opportunity of adducing evidence on the question of the alleged adultery of the wife. Then the wife filed as second application in which it was alleged that part of the maintenance allowed by the first application was still in arrear and a prayer was made by issuing a distress warrant for the arrears as also maintenance for the period from February 1945 to March 1946. This second application was disposed of by the learned Sub-divisional Magistrate on 18th August 1946. In view of the order of Imam J., the learned Sub-divisional Magistrate allowed maintenance at the rate of the original order of 31st May 1927. The husband again came up to this Court, and, on 3rd February 1947 my Lord the Chief Justice disposed of the application by holding, on a proper construction of Imam J.s order, that the rate of maintenance had been revised by Mr. Robertsons order and the wife was entitled to maintenance only at that rate.

4. Then on 27th February 1947, the wife made a third application in which it was alleged that part of the maintenance for the previous periods was still in arrear and that maintenance should be allowed for a further period from April 1946 to February 1947. This third application has been disposed of by the learned Magistrate by his order dated 8-3-1947. The learned Magistrate has allowed the wifes application and has directed that the rate of maintenance should now be calculated for all the periods in accordance with Mr. Robertsons order, as modified by Mr. Sarkar. The learned Magistrate has directed the issue of a distress warrant for the amount as found on such calculation. This order of the learned Magistrate dated 8-5-1947 was passed when the case remanded by Imam J. on the question of the adultery of the wife was still pending consideration.

5. This remanded case was disposed of by the learned Honorary Magistrate exercising first class powers at Gaya on 9-6-1947. The learned Honorary Magistrate held that the wife was living in adultery and, therefore, the order for maintenance passed on 31-5-1927 should be vacated. The learned Honorary Magistrate has vacated the order for maintenance. It is against this order of the learned Honorary Magistrate that the petition of the wife is directed, and Criminal Revision No. 716 of 1947 relates to the petition of the wife. The petition of the husband arises out of the order of the learned Sub-divisional Magistrate, Gaya, dated 8-5-1947, by which the third application for maintenance has been disposed of. It appears that the husband moved the Sessions Judge in revision and wanted a stay of the execution of the order. The learned Sessions Judge refused to stay execution. Against that order refusing to stay execution the husband has come up in revision to this Court in case No. 424 of 1947. This Court also refused to stay further proceedings while admitting the application.

6. It will be convenient to take up the petition of the wife first. As I have stated above, the short question for determination in connection with the wifes petition is if the finding of the learned Honorary Magistrate that the wife has been living in adultery is a correct finding. Learned Counsel for the petitioning wife has contended before me that the finding and order of the learned Honorary Magistrate are vitiated on three grounds: (1) the learned Honorary Magistrate has misdirected himself on the question of the nature of proof required for proving adultery; (2) the learned Honorary Magistrate has failed to take into consideration an important document and certain important facts and circumstances arising out of the evidence in the record; and (3) the learned Honorary Magistrate has committed serious errors of record with regard to the evidence given by the witnesses. In view of the grounds taken by learned Counsel for the petitioning wife, I have permitted counsel for both parties to place the entire evidence before me. Having gone through the entire evidence in the record, I am satisfied that the learned Honorary Magistrate has completely misdirected himself as to the kind of evidence which is required to prove adultery in a case of this nature. Except the husband himself, all the other witnesses who gave evidence in support of the alleged adultery spoke merely of hearsay knowledge. Not one of them gave any definite evidence from which adultery can be reasonably inferred. Learned Counsel for the husband has contended before me that direct evidence of adultery may not be possible by the very nature of the offence. That is so, but there must be some evidence showing opportunity and desire to commit the offence or access by the man to the woman, etc. Mere hole and corner tattle or bazar gossip does not prove adultery. In this case the evidence on which the learned Honorary Magistrate has relied is evidence of that character, and, if the learned Honorary Magistrate had correctly appreciated the nature of proof which is required in order to establish adultery, he could not have come to the finding to which he came on the question of adultery. [After considering the evidence his Lordship proceeded.]

7. The learned Honorary Magistrate has clearly come to an erroneous finding on the question of the alleged adultery of the wife. In my opinion no such adultery has been proved, and the order of the learned Magistrate vacating the order of maintenance on the ground of the alleged adultery of the wife must be set aside.

8. I now turn to the application of the husband. So far as that application was confined to the question of stay only, it has become in fructuous. No stay was granted by this Court, and now that the order of the learned Honorary Magistrate is being set aside by me, there is no question of any stay as regards the order passed by the learned Sub-divisional Magistrate directing the issue of a distress warrant for the realisation of the arrear maintenance. Learned Counsel for the husband, however, has raised an altogether new point before me. He has contended that if Bigan is a son of Jodhan, then it follows that the wife had resumed cohabitation with the husband, and such resumption would make the original order for maintenance ineffective; if after the resumption of such cohabitation the husband has again neglected to maintain the wife, it would be necessary for the wife to make a fresh application for maintenance and obtain a fresh order u/s 488, Criminal P.C. the original order for maintenance having become ineffective and inoperative by reason of the resumption of cohabitation. Learned Counsel for the husband has placed reliance on three Madras decisions, Vasantam Venkayya Vs. Vasantam Raghavamma, Munuswami Pillai Vs. Doraikannu Ammal, and Kuppuswami Padayachi Vs. Jagadambal, . It is not necessary for me to consider those decisions in any great detail for the simple reason that this is a new case which learned Counsel for the husband is seeking to make out in argument. It was not the case of any of the parties in neither of the Courts below. Even in the petition which the husband has filed to this Court no such ease-has been made out. The case of the wife has all along been that she has been living separate from Jodhan in a separate house and Jodhan had maintained her till 1944 when, as a result of fresh differences, the husband neglected to maintain her and her children. In the case reported in Vasantam Venkayya Vs. Vasantam Raghavamma, the wife returned to the husband and they lived together for several years. The admittea position was that they lived together for over five years and during that period the wife bore a son to the husband. In the case reported in Kuppuswami Padayachi Vs. Jagadambal, the wife rejoined the husband and lived together for about six months. In the case reported in Munuswami Pillai Vs. Doraikannu Ammal, the wife was brought to the house of the husband by a ruse and it was held that the principle laid down in the case reported in Vasantam Venkayya Vs. Vasantam Raghavamma, did not apply. In the case before me, it was nowhere the case of the wife that she had rejoined her husband or was living with him; nor is this the case of the husband in the application dated 23-4-1945. I do not, therefore, think that the husband can be allowed to make out an altogether new case in revision. u/s 489, Criminal P.C., the Magistrate may cancel or vary an order for maintenance on proof of a change or alteration in the circumstances. The only ground on which the husband wanted the order of maintenance to be vacated was the aground of adultery u/s 488(5), Criminal P.C. That ground having failed. I do not think it is open to the husband to make out an altogether new case which was never pleaded and on which no evidence was given by the parties.

9. Then there is another difficulty in the way of the husband. The previous orders for the realisation of arrears of maintenance passed by the learned Sub-divisional Magistrate had been challenged right up to this Court. Those order a have now become final, and I fail to see how those orders can now be challenged on the new ground that the resumption of cohabitation had made the original order of maintenance, passed in 1927 inoperative and ineffective. Such; a ground could and should have been taken by the husband in answer to the applications which the wife had filed. The husband had not taken that objection to the various applications which the wife had made, and on which Courts of competent jurisdiction had passed orders in favour of the wife. I do not think the husband can be allowed to go behind those orders by raising this new ground which was not pleaded before. Without, therefore, deciding whether this new ground has any substance or not, I may point out a material difference that exists between the facts of the two Madras decisions and the present case. In both the Madras decisions where the effect of resumption of cohabitation was held to make the original order of maintenance ineffective, the wife returned to the husband and lived with him for a considerable time. In the case before me there is no evidence that the wife returned to the husband and lived with him.

10. On the contrary, the case of the wife all along was that she had been living separate, though the husband has had access to her on some occasions. It is doubtful if in circumstances like the present, in which the wife is living separate from the husband, it can be held as a matter of law that the birth of a child will by itself render the previous order of maintenance ineffective or inoperative. I fail to see any good reason why in circumstances like those in the present case, the wife should be driven to file a fresh application for maintenance.

11. For the reasons given above, I allow the application of the wife and set aside the order of the learned Honorary Magistrate dated 9-6-1947. The application of the husband is dismissed.