K. Veeriah v. Muthulakshmi And Others Respondents — 1998 DIGILAW 1312 (MAD)

Judgment :- This Revisions, is preferred by K. Veeriah, the petitioner herein/husband, as against the order passed in Crl. R. P. No. 29/96 on the file of the Principal Sessions Judge, Madurai allowing in part, while modifying the order passed in the application for maintenance in M. C. No. 1/95 on the file of the Judicial Magistrate, Melur. 2. Muthulakshmi, the first respondent herein/wife, filed an application claiming for maintenance from her husband, the petitioner herein, for herself and for her minor children respondents 2 to 4. The lower Court passed an award of maintenance only on favour of the respondent-4 minor Sudha directing the petitioner to pay a sum of Rs. 200/- per month and disallowed the claim of maintenance for the first respondent, the wife, holding that she was not entitled to maintenance as she was living in adultery and disallowed the claim for the respondent 2 and 3, the minor children, on the ground that those children are living with the petitioner herein. 3. However, the first respondent challenging the order of disallowing her claim for maintenance and seeking for the enhancement of the maintenance amount to the fourth respondent, minor daughter, filed the revision before the learned Sessions Court at Madurai. On hearing the parties, the learned Sessions Judge held that the wife, the first respondent herein, was entitled to maintenance of Rs. 400/- per month and enhanced the maintenance granted in favour of the fourth respondent from Rs. 200/- to Rs. 250/- per month from the date of the application filed before the lower Court in M. C. No 1/95. This order is under challenge by the husband, the petitioner herein. 4. Mr. Subbaiah, the learned counsel appearing for the petitioner, would challenge the impugned judgment by making the following two submissions : (1) The learned Sessions Judge in a revision has no jurisdiction to reappraise or to appreciate the evidence and reverse the well considered judgment of the trial Court, in the absence of any reason to hold that the finding by the trial Court was perverse or acted on no evidence. (2) The witnesses R. Ws. (2) The witnesses R. Ws. 1 to 4 through whom Ex D-1 was filed on behalf of the husband, have established through their evidence that the first respondent/wife was not entitled to maintenance as she was living in adultery under section 125(4) Cr.P.C. The trial Court had believed their version and held that the wife was not entitled to the maintenance. The reasonings given by the trial Court to believe the evidence adduced by the husband cannot be said to be illegal. Moreover, the revisional Court cannot supply its own reason substituting the findings of the trial Court without considering the validity of those reasonings. 5. In order to support the above said submissions, the learned counsel for the petitioner would cite the authority reported in 1997 (2) Mad WN (Cri) 1 (Chinnazhagi v. Chellappan). 6. In reply to the above submissions, Mr. Krishnamoorthy, the learned counsel appearing for the respondents, would submit that the learned Sessions Judge is right in passing the impugned order, as the finding given by the trial Court was not in consonance with the law. 7. In the light of the above submissions, let me now go into the merits of the rival contentions. 8. The wife, the first respondent herein, filed an application claiming maintenance. In the said petition, she would state that 13 years ago, their marriage was solemnised and out of the wedlock, the children, respondents 2 to 4, were born. During the course of time, the wife was tortured and harassed by the petitioner/husband demanding dowry and ultimately, the wife and children were driven out of the matrimonial home. On 3-2-95, the husband contracted a second marriage with one Muthu. Therefore, the husband, who is earning well through his business, has to pay maintenance to the wife and children. 9. This claim was contested on the ground that the wife had an illicit connection with one Ramu immediately after the birth of the first son. She was warned for this illegal act even thereafter they were living together. Thereupon, two children were born. Against she was found to have illegal connection with one Chidambaram. Then Panchayat was conducted. In pursurance of the panchayat decision, both had agreed for divorce and got separated. 10. On the side of the wife, P.W. 1 wife, P.W. 2 father of P.W. 1. and P.W. 3 were examined. Thereupon, two children were born. Against she was found to have illegal connection with one Chidambaram. Then Panchayat was conducted. In pursurance of the panchayat decision, both had agreed for divorce and got separated. 10. On the side of the wife, P.W. 1 wife, P.W. 2 father of P.W. 1. and P.W. 3 were examined. On the side of the husband, the husband and three others were examined as R. Ws. 1 to 4. The Panchayat muchalika was marked as Ex. D-1. 11. The trial Court, on consideration of the entire materials though found that the Panchayat Muchalika Ex. D-1 was not a genuine one, since admittedly the signature of the wife was not tallied with the signature found in the muchalika, but held that the wife was not entitled to maintenance, as the materials to show that she was living in adultery, which had not been rebutted by the wife. 12. As mentioned above, it is relevant to note that the trial Court itself found that the alleged divorce by virtue of the muchalika Ex. D-1 was not established. The learned Sessions Judge has disbelieved the evidence of R. Ws. 1 to 4 with reference to the materials relating to the aspect of the wife having illicit connection with others. 13. The learned counsel for the petitioner, on the strength of the decision 1997 (2) Mad WN (Cri) 1 (supra) would contend that the revisional Court cannot disturb the factual findings rendered by the trial Court. It is true that it is a cardinal principle of law that in revision, the revisional Court will not interfere with the order of the Court below, unless there are some compelling reasons for doing so, such as, where the judgment or order of the Court below is vitiated by perversity or gross illegality. 14. In such a situation, the learned Sessions Judge, according to the counsel for the petitioner, ought not to have set aside the order of the trial Court, especially when there is no finding in the order passed by the learned Sessions Judge that the conclusion arrived at by the trial Court was perverse. 15. 14. In such a situation, the learned Sessions Judge, according to the counsel for the petitioner, ought not to have set aside the order of the trial Court, especially when there is no finding in the order passed by the learned Sessions Judge that the conclusion arrived at by the trial Court was perverse. 15. The grievance of the learned counsel for the petitioner is that the Sessions Court without looking into the order of the trial Court, merely went to the evidence and came to its own conclusion after appreciation of the materials produced by the witnesses, which is not permissible under law, while dealing with the revision. 16. However, on perusal of the impugned order passed by the learned Sessions Judge in the revision, I find that the learned Sessions Judge has gone into the reasonings given by the trial Court. The relevant observation is this :- [Vernacular matter omitted] 17. It is true that the revisional Court cannot re-appreciate the evidence which was already appreciated made by the trial Court. But, in my view, the appreciation made by the trial Court, was not in terms of the meaning of the words "living in adultery" as contemplated under section 125(4) Cr.P.C. 18. In that view of the matter, the learned Sessions Judge is perfectly correct in holding that the conclusion arrived at the trial Court that the wife was "living in adultery" is not correct. 19. In order to show that the decision arrived at the learned Sessions Judge, with reference to the evidence relating to the wife"living in adultery", has been correctly taken, it is quite appropriate to refer to some of the decisions rendered by this Court as well as by other High Courts. (1) Pattayee Ammal v. Manickam Gounder, AIR 1967 Madras 254 : (1967 Cri LJ 900); (2) Papammal v. Dharman, 1970 (2) MLJ 81; (3) S. S. Manickam v. Arputha Bhavani Rajam, 1979 Mad LW (Cri) 143 : (1980 Cri LJ 354); (4) S. Gulam Mohindeen v. Rasheeda Fathima Niga Begam, 1981 TLNJ 7; (5) Mathein v. Maung Myakhin, AIR 1937 Rangoon 67 : (1937 (38) Cri LJ 646). 20. The essence of the judicial pronouncements is to the effect that when the husband challenges the claim for maintenance of his wife alleging that his wife is "living in adultery", the husband should prove that there is continued adulterous conduct. 20. The essence of the judicial pronouncements is to the effect that when the husband challenges the claim for maintenance of his wife alleging that his wife is "living in adultery", the husband should prove that there is continued adulterous conduct. The phrase 'living in adultery' refers to course of guilty conduct and not a single lapse from virtue. 21. The term "adultery" is to be understood in the light of the social ideas of the community as being a serious breach of the matrimonial tie."Living in adultery" - mere friendship with a man does not amount to adultery within the meaning of Section 125(4) Cr.P.C."Living in adultery" means the following of a course of continuous adulterous conduct. 22. While determining the factum of "Living in adultery" the Court must consider evidence on record to ascertain as to whether the wife was living in quasi-permanent union with man with whom she was allegedly committing adultery. It is for the husband to prove that the wife is continuously committing violation of the marriage bed, indulging in adulterous life, by living in quasi permanent union with her paramour. In order words "living in adultery" means an outright adulterous conduct where the wife lives in quasi permanent union with a man with whom she is committing adultery, 'shortly' before or after the petition for maintenance. 23. It is only when the husband proves satisfactorily beyond reason doubt that his wife was living in adultery, she will not be entitled to maintenance and not otherwise. When an allegation of adultery is made against the wife, the Court is bound to enquire into her conduct. In the said enquiry, the husband has to begin his case and the wife must be given an opportunity for adducing evidence to rebut the allegation of "living in adultery". 24. The words "living in adultery" are merely indicative of the principle that a single or occasional lapse from virtue is not a sufficient reason for refusing maintenance. To reiterate the continued adulterous conduct is what is meant by "living in adultery". 25. The question, therefore, for the Court to decide is whether there had been such continued adulterous conduct on the part of the wife at or about the time of the application. To reiterate the continued adulterous conduct is what is meant by "living in adultery". 25. The question, therefore, for the Court to decide is whether there had been such continued adulterous conduct on the part of the wife at or about the time of the application. The continuous adulterous conduct on the part of the woman at or about the time of the application would mean such conduct shortly before or shortly after the application was made, interpreting the word "shortly" in a reasonable manner. What is reasonable would depend upon the facts and circumstances of each case. 26. The words "living of adultery" do not necessarily mean that the husbands is to prove that his wife was living in adultery on the date of the application itself. The words must be interpreted to mean that it is enough for the husband to prove that the wife has been continuously "living in adultery" shortly before the application was made. 27. No doubt, the term 'adultery' is understood in the light of the social idea of the community, namely, even a single instance, is a serious breach of the matrimonial tie, since such conduct is against, the moral standards expected of each of the spouses. 28. In this context, it is useful to refer to Section 125(4) of the Cr.P.C. :- "No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery". The words "if she is living in adultery" would imply in the plain and ordinary meaning that the wife must be living in adultery at the time when the application for maintenance was filed. 29. As pointed out by Krishna Iyer, J. in Bai Tahira v. Ali Hussain Fisali, AIR 1979 SC 362 : (1979 Cri LJ 151), while dealing with a case of maintenance under section 125 Cr.P.C., the meaning of the words contained in Section 125(4) Cr.P.C. cannot be pedantic but purposeful, as the law is dynamic. 30. In the light of the above guide lines, it need not be for the husband always to prove that on the date of the application, the wife was living in adultery. But, it is certain that there must be satisfactory proof that the wife was living in adultery shortly before the filing of the application. 31. 30. In the light of the above guide lines, it need not be for the husband always to prove that on the date of the application, the wife was living in adultery. But, it is certain that there must be satisfactory proof that the wife was living in adultery shortly before the filing of the application. 31. Bearing these principles in mind, let me now go into the reasonings giving by the learned Sessions Judge to hold that the wife was entitled to maintenance. 32. As pointed out by the learned Sessions Judge, after the birth of the first child, the wife was stated to have illicit connection with one Ramu and there was some panchayat. In the said panchayat, the wife is said to have been warned. Thereupon, they lived together and other two children were born to them. 33. It is the case of the husband that she was caught red handed, when she had connection with one Kangan. However, the evidence of R. W. 2, examined on the side of the husband with regard to the Ramu episode, there was a panchayat and before the panchayat, it was not established that she had any illegal connection with said Ramu. Admittedly, the alleged connection with Ramu was 11 years earlier. Regarding the connection with one Kangan, it is stated by R. W. 3 that there was a panchayat 3 years before. 34. Thus, none of the witnesses examined on the side of the husband would speak about the alleged illicit connection of the wife with any other man shortly before the filing of the application. 35. The application for maintenance was filed on 16-3-95. In the said application, it was alleged by the wife that she and her children are living with her parents. The evidence given by P.W. 1 to the effect that they were living with the parents was corroborated by the evidence of her father P.W. 2 and another witness P.W. 3. This aspect of the evidence has not been challenged. 36. So, under these circumstances, it can be very well concluded that it was not established by the husband that she was living in adultery with some other man shortly before the filing of the application. 37. Moreover, the learned Sessions Judge has been given cogent reasons to disbelieve the evidence of R. Ws. 36. So, under these circumstances, it can be very well concluded that it was not established by the husband that she was living in adultery with some other man shortly before the filing of the application. 37. Moreover, the learned Sessions Judge has been given cogent reasons to disbelieve the evidence of R. Ws. 1 to 4, even with regard to the alleged illicit connection with some other person, that too, long prior to the filing of the application. 38. In this context, it is significant to note that the scope and object of the provision has been expressed clearly by the Law Commission in its 41st report thus :- "In Section 488(4) the words 'living in adultery' have been almost uniformly interpreted as indicating an adulterous course of life as distinguished from a single lapse from virtue. It has been suggested that a single act of adultery should be enough to disentitle wife to maintenance. We are unable to accept the suggestion. Hardships are bound to arise if the wife is totally debarred from the remedy under this Section because of a single laps from virtue. Further, to deprive her of maintenance for an occasional lapse may force her to live sinful life and give her no chance to redeem herself." 39. In view of the above observation in Law Commission Report, the husband shall establish by unimpeachable and cogent evidence that his wife at or about the time of the filing of the maintenance petition has been leading continued adulterous life. Admittedly, those materials are not available in this case. 40. In these circumstances, I am of the view that the first respondent/wife is entitled to maintenance of Rs. 400/- per month as held by the learned Sessions Judge. In fact, there is no dispute with regard to the fact that 2nd and 3rd respondents are not living with the petitioner/husband. So the 4th respondent, who is now living with the first respondent/wife, is entitled to a maintenance of Rs. 250/- per month, as held in the impugned order. 41. In view of the above legal position, I concur with the view taken by the learned Sessions Judge and dismiss the Revision, as devoid of merits. Revision dismissed.