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2005 DIGILAW 378 (ORI)

Millon Mukherjee v. Archana Mukherjee

2005-06-21

A.K.PARICHHA

body2005
JUDGMENT A. K. PARICHHA, J. : The petitioner is the husband and the opp.party is the wife. The wife-opp.party filed Misc.Case No.10 of 1994 under Section 125, Cr.P.C. before the learned Judicial Magistrate First Class, Jaleswar asking for a monthly maintenance of Rs.500/- from the petitioner-husband basically on the plea of neglect and ill-treatment towards her by the petitioner-husband and his family members. It was pleaded by the opposite party-wife that after being driven away by the petitioner-husband, she has taken shelter in the house of her parents and that she has no source of earning to maintain herself and so the petitioner-husband, whose income is more than Rs.3,000/- per month, should pay her a monthly maintenance of Rs.500/-. The petitioner-husband resisted the claim of maintenance on the plea that never ill-treated or neglected to maintain the opposite party-wife, but without any rhyme or reason the opposite party-wife has deserted him and inspite of all efforts she is not coming back. The petitioner husband also took the plea that the opp-party-wife is leading an adulterous life with one Ashok Pathak and for that reason she has forfeited her right of mainte¬nance. Learned J.M.F.C., Jaleswar after considering the evidence adduced by the parties allowed the prayer of opp.party-wife and directed the petitioner-husband to pay a monthly maintenance of Rs.500/- to her. The petitioner filed Criminal Revision No.110 of 1998 in the Court of Sessions Judge, Balasore-Bhadrak- Balasore challenging the aforesaid order of maintenance,. The Revisional Court after considering the evidence on record and circumstances upheld the order of maintenance passed by the learned J.M.F.C. Jaleswar. Aggrieved, the petitioner has filed the present application under Section 482,Cr.P.C. for quashing the order of maintenance passed in Misc. Case No.10 of 1994 by the learned J.M.F.C., Jaleswar and the revisional order passed by the learned Sessions Judge, Bala¬sore-Bhadrak-Balasore in Criminal Revision No.110 of 1998. Mr. S. K. Das, learned counsel for the petitioner submitted at there are enough material on record to conclude that the opposite party- wife is having adulterous relationship with one Ashok Pathak, but the Courts below without properly appreciating the evidence, extended the conclusion that the allegation of adultery has not been established. Mr. Das also submitted that the Courts below failed to take note of the fact that opposite party-wife has voluntarily deserted the petitioner-husband with¬out any reasonable excuse. Mr. Mr. Das also submitted that the Courts below failed to take note of the fact that opposite party-wife has voluntarily deserted the petitioner-husband with¬out any reasonable excuse. Mr. A. S. Nandy, learned counsel for the opposite party-wife on the other hand submitted that the evidence produced by the petitioner-husband in no way established the charge of adultery against he opposite-wife and therefore, the Courts below were justified in rejecting the plea taken by the petitioner-husband. He further submitted that the evidence led by the parties show that the petitioner neglected to maintain opp.party-wife and also ill-treated her and threw her out of his house and so there was no occasion for the Courts below to hold that the opposite party wife is remaining away from the petitioner-husband voluntarily without any reasonable excuse. Mr. Nandy also submitted that when the Courts of fact have concurrently held that due to neglect and ill-treatment of the petitioner husband the opposite party-wife has been living away from the matrimonial home,. there is no scope for this Court in a proceeding under Section 482, Cr.P.C. to re-assess the evidence and give an alternative finding on such issue. Whenever, an order of maintenance is challenged either before the Sessions Judge or the High Court in a revision peti¬tion or a petition under Section 482, Cr.P.C., such Court shall not consider the matter as it if were a Court of appeal, and normally refrain from interfering with the finding of fact and shall allow the aggrieved party to file a suit. Only when the Courts of fact have not given any definite finding on the issue of marriage or on the issue of neglect and ill-treatment or when the maintenance amount awarded is grossly in adequate then inter¬ference can be made by the High Court under Section 482, Cr.P.C. (See Cr.L.J. 1935, Vol-35, Page-1044, M.B. Ignatious v. Alagamma). So, it is now not open for this Court to re-assess the entire evidence on record and to give fresh finding on the issues of fact. The only aspect which this Court is empowered to examine is whether there is lack of any definite finding on the issues or whether there is any perversity in the approach of the Courts below. In this case, the relationship of husband and wife is admit¬ted. The only aspect which this Court is empowered to examine is whether there is lack of any definite finding on the issues or whether there is any perversity in the approach of the Courts below. In this case, the relationship of husband and wife is admit¬ted. It is also admitted that the parties are residing separately and the petitioner-husband is not providing maintenance to the wife-opposite party. The controversial issue is whether the wife-opposite party is leading an adulterous life and has forfeited her right of maintenance from the petitioner husband. The peti¬tioner-husband as O.P.W.1 and his witnesses O.P.W.2 have stated about opposite party-wife having an affair with one Ashok Pathak. The opposite party-wife and her witness on the other hand have stated that the petitioner-husband ill-treated the opp.party-wife, neglected to maintain her and finally threw her out of his house, as a result, the opp.party is living under the shelter of her parental home. They have clarified that because Ashok Pathak, who is a doctor and a well-wisher of the parties tried for amica¬bly settlement between the parties, and asked the petitioner to take back the opp.party, the petitioner has raised false allega¬tions against him. As has been said in the case of Kista Pillai v. Amirthammal (AIR 1938 Madras 833), the burden of proof to establish the case under Section 125, Cr.P.C. is normally on the wife, who claims maintenance. But if the husband resists such claim of the wife on the ground that the wife is living in adultery, then the burden shifts to the husband and the husband in such case must establish in clear terms that at the relevant point of time, the wife was living in adultery. In that case the husband-petitioner resisted the claim of maintenance of the wife on the plea that she was living in adultery. The Court held that proving of adultery lies squarely on the husband who alleges adulterous conduct of the wife. What constitutes “living in adultery” was also explained in that case. The Court observed that continuous adulterous conduct is what is meant by living in adultery. An occasional lapse from virtue is not sufficient to constitute living in adultery and that for such occasional lapse maintenance cannot be refused to the wife. What constitutes “living in adultery” was also explained in that case. The Court observed that continuous adulterous conduct is what is meant by living in adultery. An occasional lapse from virtue is not sufficient to constitute living in adultery and that for such occasional lapse maintenance cannot be refused to the wife. In the instant case, the specific evidence of the petitioner husband is that on one occasion, he found the opposite party-wife in a compromising position with Ashok Pathak. There is nothing except this bald allegation. O.P.W. No.2, who was brought to corroborate the allegation of the petitioner simply stated that one day being called by the petitioner, he came to the house of the petitioner and found Ashok pathak coming out of that house. The evidence of the petitioner and witness even if accepted as true do not establish continuous adulterous conduct of the wife and for such alleged occasional lapse from virtue also mainte¬nance cannot be denied to the wife-opposite party. As has been said in the cases of Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and others ( AIR 1978 S.C. 1807 ), Dwarika Prasad Satapathy v. Bidyutprava Dixit and another ( AIR 1999 S.C. 3348 ) Section 125, Cr.P.C. is a measure of social justice and specially enacted to protect women and children and it falls within the constitutional sweep of Article 15(3) as has been reinforced by Article 39 of the Constitution. So, the provi¬sions of these Sections clearly call for interference by Courts not rigidly according to prints, but according to vibrant words with social functions to fulfil. It has been impressed in these cases that the Courts must infer the interpretation in the line of social relevance and whenever two interpretations are possi¬ble, the interpretation which favours weaker Section should be adopted. It was also clarified that in a case under Section 125, Cr.P.C. the persons claiming maintenance is not required to estab¬lish the plea of neglect and ill-treatment etc beyond reasonable doubt and that such plea can be established by preponderance of probabilities. In the case at hand, the wife opposite party alleges neglect and ill treatment by the husband-petitioner and his family mem¬bers and she has narrated the instances of such neglect and ill-treatment. In the case at hand, the wife opposite party alleges neglect and ill treatment by the husband-petitioner and his family mem¬bers and she has narrated the instances of such neglect and ill-treatment. The husband petitioner took the defence that the wife-opposite party is living away from him without reasonable excuse and all his attempts to bring her back have failed. He also al¬leged that the wife opposite party is leading an adulterous life. In this regard the opposite party and her witnesses have clari¬fied that the petitioner threw the opposite party out of his home and in spite of request by all the family members of the opp.party and the gentlemen including Ashok Pathak, the petition¬er husband is neither taking back the opposite party nor provid¬ing her with any maintenance. Normally a wife, who is treated well and maintained properly by the husband would not like to leave her matrimonial home and ruin her own family life. So, when a wife alleges ill-treatment and neglect by the husband and his family members, such allegations may be presumed to be true unless evidence to the contrary is forthcoming. In this case, the wife-opposite party has directly alleged neglect by the petition¬er-husband and has led evidence on that score. The petitioner husband although alleged adulterous life on the part of opposite party-wife could not establish the same. The evidence also does not show that he made sincere efforts to bring back the wife-opposite party or to provide maintenance to her. In the face of such evidence and circumstances the conclusion of neglect and ill-treatment arrived at by the Courts below cannot be termed as arbitrary or unreasonable. A husband is duty bound to maintain his wife, children and old parents, who have no means of maintaining themselves. Admit¬tedly, the wife opposite party has no income but the petitioner-husband has a monthly income of Rs.3,000/- approximately. Neglect and ill-treatment by the petitioner-husband towards opposite party-wife has been reasonably established. So, legally the oppo¬site party is entitled to get maintenance from the husband-peti¬tioner. In such back drop grant of monthly maintenance of Rs.500/- to the opposite party-wife does not sound reasonable or excessive. For the reason aforesaid the impugned orders allowing month¬ly maintenance in favour of opposite party-wife cannot be quashed. Accordingly the CRLMC is dismissed. CRLMC dismissed.