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2014 DIGILAW 323 (CHH)

Shiv Kumar Netam v. Meena Devi Netam

2014-08-26

SANJAY K.AGARWAL

body2014
ORDER 1. The applicant/husband questions the order of Family Court dated 05.10.2006 passed in Misc. Suit No. 650 of 2005 granting maintenance under Section 125(1) of the Code of Criminal Procedure (for short the Code) to non-applicant No. l wife, by filing criminal revision under Section 19(4) of the Family Court Act, 1984. 2. The core facts necessary in order to understand the dispute and for eventual adjudication are as under:- 2.1 Non-applicant No. l Meena Devi Netam along with her daughter (Non-applicant No. 2) filed an application under Section 125 of the Code pleading inter alia that she is the legally wedded wife of applicant and the non-applicant No. 2 is her daughter. It was further pleaded that the non-applicant No. l wife is suffering from heart ailment and undergoing treatment at Dhamtari and she has been forced to live separately on account of ill treatment extended by the applicant and, as such, they are unable to maintain themselves and she has further pleaded that though the applicant has sufficient means to maintain them, even then he neglected them to maintain. 2.2 Resisting the claim of non-applicants, applicant/husband filed his counter admitting their marriage and the birth of female child (non-applicant No. 2.) but pleaded that non-applicant No. 1 has illicit relation with one Lakhan Lal and they were found in compromising position by their two sons and when she was asked to refrain from such relation, non-applicant No. 1 came to Bhilai Nagar along with non-applicant No. 2 and since then, she is residing at Bhilai Nagar with Lakhan Lal and, therefore, the non-applicants are not entitled for maintenance by virtue of Section sub-section (4) of Section 125 of the Code. 2.3 The Family Court, after embarking on the pros & cons of the evidence fully, allowed the application holding that non-applicant No. l is entitled for maintenance of Rs. 1,500/- per month and negatived the plea of the applicant/husband that no-applicant No. l is living in adultery within the meaning of Section 125 (4) of the Code. Against this order, instant revision has been filed by the applicant/husband impugning the legality and correctness. 3. Shri P.P. Sahu, learned counsel appearing for the applicant would submit that the finding recorded by the learned Principal Judge, Family Court, Raipur that the applicant has failed to establish that the non-applicant No. l wife is living in adultery is perverse. Against this order, instant revision has been filed by the applicant/husband impugning the legality and correctness. 3. Shri P.P. Sahu, learned counsel appearing for the applicant would submit that the finding recorded by the learned Principal Judge, Family Court, Raipur that the applicant has failed to establish that the non-applicant No. l wife is living in adultery is perverse. He would further submit that the applicant has clearly established the continuous adulterous conduct on the part of the non-applicant No. l wife and, as such, the impugned order granting maintenance in teeth of continued adulterous, life deserves to be annulled in this revision. 4. Shri D.N. Prajapati, learned counsel appearing for the respondents would submit that there is no specific pleading made in the counter to allege that non-applicant No. l is living in adultery within the meaning of Section 125 of the Code and furthermore, that the applicant has failed to establish continued adulterous conduct on her part so as to bring her conduct within the meaning of Section 125(4) of the Code, which disentitles her statutory right of maintenance granted under Section 125(1) of the Code. 5. I have heard learned counsel appearing for the parties and considered the rival submissions made therein including order impugned with utmost circumspection. 6. At this stage, it would be proper to notice under Sections 125 (1) of the Code, which read as under:- 125. Order for maintenance of wives, children and parents - (1) If any person having sufficient means neglects or refuses to maintain :- (a) His wife, unable to maintain herself. (b) His legitimate or illegitimate minor child, whether married or not, unable to maintain itself. (c) His legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself. (d) His father or mother, unable to maintain himself or herself. (b) His legitimate or illegitimate minor child, whether married or not, unable to maintain itself. (c) His legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself. (d) His father or mother, unable to maintain himself or herself. 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, father or mother, at such monthly-rate, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct:- Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means: Sub-section (4) of Section 125, Cr. P.C. is extracted below for ready reference. (4) No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. 7. At this stage, it would be proper to notice certain judicial decisions decided by the High Courts. 7.1 The Calcutta High Court in case of Jatindra vs. Gouri Bala, AIR 1925 Cal 794 has held that the words living in adultery connotes a course of adulterous conduct more or less continuous. 7.2 The Bombay High Court in case of Rajani vs. Prabhakar, AIR 1958 Bom 264 while considering is living in adultery employed in clause (i) of sub-Section 13 of the Hindu Marriage Act, 1955 (unamemded) held as under:- That for invoking the application of clause (i) of sub-section (1) of Section 13, it must be shown that the period during which the spouse was living an adulterous life was so related from the point of proximity of time, to the filing of petition, that it could reasonable be inferred that the petitioner had a fair ground to believe that when the petition was filed, she was living in adultery. 7.3 The Madras High Court in case of Pattayee Ammal vs. Manickam Gounder and Another, AIR 1967 Mad 254 while considering the phase is living in adultery held as under:- The word is living in adultery have been considered in Section 488, Cri. P.C. Many High Courts have held them to mean a continuous course of adulterous life as distinguished from one or two lapses from virtue. Living in adultery is wider than mere living as a concubine or as a kept mistress. The word is living cannot mean was living. It is true that it would not be possible to lay down any hard and fast rule. Each case must be decided upon its own facts. 8. The quintessence of all the judicial pronouncements is to the effect that when the husband challenges the claim of maintenance of his wife, alleging that his wife is living in adultery, the husband ought to begin his case and prove the allegation of such adulterous life on the part of the wife by letting in evidence of her continued adulterous conduct at or about the time of the application and then the wife against whom such a charge is made out to given an opportunity to rebut such allegation. The husband must prove the continuous adulterous conduct on her (wife) part in order to refuse maintenance to her under Section 125 (1) of the Code. 9. At this stage, it would be proper to notice the evidence brought by the husband to prove the allegation that the wife is living in adultery. 10. (NAW-1)-Shiv Kumar has stated in his evidence before the Court that non-applicant No. 1 has started living with Lakhan Lal at Bhilai Nagar as husband and wife. His son Sudhir (NAW-2) has stated that he had seen the non-applicant with the Lakhan Lal in his house in the compromising position twice. Whereas, Mukesh Kumar Markar (NAW-3), who is residing in the same vicinity has said that non-applicant/wife is staying with the Lakhan Lal for the last five years. Rambharosa (NAW-4), who is father of the non-applicant alleges that non-applicant is staying with the Lakhan Lal for last two years. 11. Whereas, Mukesh Kumar Markar (NAW-3), who is residing in the same vicinity has said that non-applicant/wife is staying with the Lakhan Lal for the last five years. Rambharosa (NAW-4), who is father of the non-applicant alleges that non-applicant is staying with the Lakhan Lal for last two years. 11. Thus, taking into consideration the plea of applicant that the non-applicant No. 1 is living in adultery is absolutely vague and the evidence brought by the appellant to this effect is also not very specific to prove the continuous adulterous conduct on the part of non-applicant No. 1 as strong and unimpeachable evidence is required to hold that non-applicant N. 1 is living in adultery within the meaning of Section 125(4) of the Code and, therefore, the Family Court is absolutely justified in passing the order granting maintenance to the non-applicant No. 1. 12. As a fall out and the consequence of the aforesaid discussion, the criminal revision is held to be devoid of merit and is, therefore, dismissed. Petition dismissed.