Judgment 1. The Petitioner who is the wife of the respondent herein has approached this Court challenging the order dated 14.10.2014 passed in Criminal Miscellaneous No.392/2013 by the Family Court Judge, Bijapur, in refusing to grant maintenance under Section 125 of Cr.P.C., on the ground of adultery. 2. I have heard the arguments of the learned Advocates appearing for the petitioner and the respondent and I have carefully perused the records and the evidence adduced by the parties. 3. There is absolutely no dispute between the parties regarding relationship that, the petitioner is legally wedded wife of respondent and their marriage took place during the year 1987 and thereafter, they lived as husband and wife together for long years up to 2013 and they were blessed with three children. It is stated by the petitioner that on 01.05.2013, the respondent has driven out the petitioner from her matrimonial home. Without any alternative, the petitioner took shelter in her parental house and started residing there. Thereafter, she filed an application before the Family Court under Section 125 of Cr.P.C., seeking maintenance from the respondent. It is also not in dispute between the parties that the petitioner and the respondent were blessed with three children. The first child by name Kumari Jyoti was aged about 17 years, the second child by name Kumar Allamaprabhu was aged about 13 years and another son by name Kumar Siddaling was aged about 9 years as on the date of the filing of the petition. It is also not in dispute that all the children are at present residing with the respondent-husband and petitioner-wife is residing in her parental house. It is urged that the petitioner is having agricultural lands and getting income of Rs.10,00,000/- per annum. Therefore, the petitioner claimed maintenance of Rs.10,000/- per month. 4. The respondent who appeared before the Court has taken up the contention that the wife has been living in adultery; she had illicit intimacy with one Basappa Shrishail Dandharagi of Nagathan village, whose land is situated adjacent to the land of the respondent. It is further alleged that the petitioner was caught red handed when she was in the compromising company of the said person. Even the children of the petitioner and respondent have also seen the illicit relationship of the petitioner with the said Basappa. It is further alleged that the petitioner was caught red handed when she was in the compromising company of the said person. Even the children of the petitioner and respondent have also seen the illicit relationship of the petitioner with the said Basappa. The petitioner suppressing the said true facts, with an intention to harass the respondent filed a case against the respondent for maintenance. Therefore, mainly on the ground of adultery, the respondent pleaded that the petition is not maintainable and the same is liable to be dismissed. 5. The petitioner examined herself as PW.1 and reiterated the contents of the petition. In the course of cross-examination of PW.1, suggestions have been made with respect to the defence taken by the respondent and those suggestions have been denied and PW.1 has specifically stated that she has no relationship with said Basappa Shrishail Dandharagi as alleged against her. She has produced three documents at Exs.P1 to P4 which are the RTC extracts and VPC extract pertaining to the land and house of the respondent. 6. The respondent examined himself as RW.1 and he also got examined RW.2-Kumari Jyoti, first daughter of PW.1 and RW.1. 7. On the basis of the above said evidence, the Family Court framed three points for consideration, which are as follows: i. Whether the petitioner proves that, the respondent has refused and neglected to maintain her? ii. Whether the respondent proves that, the petitioner is having illicit relationship with one Basappa Shrishail Dandharagi of Nagathan village, as such she is involved in adultery and hence, she is not entitled for maintenance from the respondent as claimed? iii. Whether the petitioner proves that, she is entitled for maintenance from the respondent as claimed? iv. What order? 8. The Trial Court giving finding on all the three issues in the negative, ultimately, dismissed the petition. Being aggrieved the petitioner is before this Court. 9. The main crux of the case revolves around point No.2 i.e., defence taken up by the respondent that the petitioner has been living in adultery with one Basappa Shrishail Dandharagi of Nagathan Village and therefore, she is not entitled for maintenance. Therefore, heavy responsibility is on the respondent to prove to the satisfaction of the Court beyond all reasonable doubt that the wife has been living in adultery. Therefore, heavy responsibility is on the respondent to prove to the satisfaction of the Court beyond all reasonable doubt that the wife has been living in adultery. When plea of adultery is taken, it is a serious defence of the respondent if he failed to prove that particular aspect, then it amounts to character assassination of the wife and consequently, nothing required to be proved by the wife with reference to neglect or refusal to maintain her and that false defence itself is sufficient to hold neglect and refusal, then the Court shall award maintenance to her. In this background, the Court has to see whether such a serious responsibility has been discharged by the respondent or not. 10. I had an occasion to deal with such matter in RPFC No. 200053/2014 in the case of Shivashankreppa Vs. Shaila an others, wherein at paragraph-7 it is observed as hereunder: “7. In order to prove adultery, the person who alleges adultery has to prove the ingredients of Sec.497 of IPC, whether it is a civil case or criminal case, if allegations of criminal misconduct of commission of offence is alleged and particularly when the allegations amounting to assassination of a character of a woman, then such allegations have to be proved beyond all reasonable doubt. It is further observed that no where in Section 125 of Criminal Procedure Code or under any other Law, the definition of adultery is given, except under Section 497 of Indian Penal Code.” 11. Therefore it is just and necessary to peruse and understand the said provision. Section 497 of IPC, reads as follows: “497. Adultery.- Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe 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.” 12. In such case the wife shall not be punishable as an abettor.” 12. As per the above said provision, husband has to prove that his wife without his consent, without his connivance has had sexual intercourse with some other person and the same has been continuously done and thereby, she has been living in adultery, as such she is not entitle for any maintenance. 13. It is also to be borne in mind that the term adultery is used in popular sense a breach of matrimonial tie by either of the parties. In various circumstances, if single act or lapse from the virtue due to some circumstances is not sufficient to prove the adultery, if a lady is not living in continuous illicit relationship with the other person, other than her spouse. Therefore, it should be shown to the Court that soon prior to and as on the date of the petition, wife has been living in adultery. Even showing to the Court that on some previous occasion she had some illicit intimacy with some other person itself cannot be said to be a foundation to hold that wife has been continuously living in adultery and that even on the date of the petition, she has been living in adultery. It is incumbent upon the respondent to prove that wife has continued her adulterous conduct even on the date of the petition and subsequently. Therefore stray sexual act on the part of wife may not be sufficient to refuse maintenance assuming or presuming that she has been living in adultery. Under Section 125(4) of Cr.P.C. the expression living in adultery is to be understood in the other way also i.e., to say living in adultery has been consistently defined that it is an outright adulterous conduct willing to live with another person with an intention to permanently abandon the relationship with her husband. The expression living in adultery implies such living particularly; prior to and as on the date of the petition is an imperative condition to refuse maintenance under Section 125 of Cr.P.C. Where the wife is living with another person continuously and it was known to the husband, and he made all his efforts to establish that adulterous life, in spite of that if he fails to establish such plea, he is liable to pay maintenance. In fact, in such circumstances in my opinion, the conduct of the husband plays a dominant role. When he alleges that wife has been living in adulterous life but he never makes any attempt to file any petition for divorce and he never lodged any complaint against his wife, keeps him quiet for continuous long period, even after coming to know about the adulterous life, has also to be taken into consideration. In this background, the Court has to analyze the evidence on record to come to the conclusion whether husband has proved the case of adultery beyond all reasonable doubt. 14. The respondent has mainly relied upon the evidence of himself and his daughter. In my opinion, husband’s evidence is an interested testimony and there should be some corroboration to the evidence of respondent otherwise, he himself is the complainant and he makes allegations without any corroboration, then, such sole interested testimony of the respondent normally should not be based to hold that wife is living in adultery. In the examination in chief, RW.1 has categorically reiterated that long prior to the petition; he has seen the wife had illicit intimacy with a person by name Basappa Shrishail Dandhargi. He has stated at paragraph-2 that the petitioner used to have sexual intimacy with the said Basappa Shrishail Dandharagi and this factum was known to his children and the children have also seen the said aspect and the respondent also seen the same on several occasions. In fact he has categorically stated that two or three times he has convened a Panchayath and got her advised. But in spite of that she told him that she would like to live with said Basappa Shrishail Dandharagi. But very peculiarly enough he never says that who are all participated in the said Panchayath and why any one of the panchyatdar has not come forward before the Court to substantiate the defense taken up by the respondent. He further stated that about three years prior to the filing of the petition she voluntarily left the conjugal company of the respondent, went to her parental house and that itself clearly goes to show that prior to three years of filing of the petition she had been living with the respondent-husband. Except these things nothing has been stated in the examination in chief why he could not examine any private independent witnesses. Except these things nothing has been stated in the examination in chief why he could not examine any private independent witnesses. In the course of cross-examination, of-course suggestions have been made denying such allegations against her. Even in my opinion the examination in chief itself is not sufficient to come to a definite conclusion, there is no vivid description as to on what date, time and place, how many times he has seen his wife having illicit intimacy with the said person. It is an omnibus allegation with out any foundation made against the wife that she has been living in adultery having illicit intimacy with one Basappa Shrishail Dandharagi. 15. R.W.2 the daughter of the petitioner and the respondent in fact deposed before the Court that during her young age she used to see the petitioner going along with one Basappa Shrishail Dandharagi in the sugar cane fields and have had sexual intercourse with him. She had also stated that she has actually seen her mother in compromising position with the said Basappa Shrishail Dandharagi. She has informed the same to his father and father also on several occasions seen that incident. Here also she doesn’t stated as to when she actually came to know about the said illicit intimacy but she has stated that when she was aged 08 years she saw such incident. In the date of giving the evidence before the Court she was aged 18 years attained age of majority that means after coming to know such illicit intimacy for a period of more than ten years, the husband and wife lived together and the husband has not raised even his little finger against her before any competent authority for taking action against her, but he has not explained why he has not done so. Therefore though R.W.2 who is the daughter of petitioner has stated so, merely because of the relationship with the petitioner, the Court should not be swayed away and presumes on an imagination that no daughter would give evidence against her own mother, if such incident has not happened. This particular factual aspect has to be taken with a pinch of salt. The Court has to visualize all the surrounding circumstances in order to give credit or discredit the evidence of the witnesses. It is also a vital factor to be taken note of. 16. This particular factual aspect has to be taken with a pinch of salt. The Court has to visualize all the surrounding circumstances in order to give credit or discredit the evidence of the witnesses. It is also a vital factor to be taken note of. 16. Admittedly, after the separation of the petitioner and respondent since three years, R.W.2 and other children have been living with their father and it is admitted in the course of cross-examination that all the needs of the children are being taken care off by the father and they also admitted that they follow the directions of their father. Further-more the surrounding circumstances disclose that till the date of taking defence to the petition by the wife before the trial Court, there is absolutely no whisper with regard to the petitioner living in adultery in any manner for a period of 10 years. If such alleged adultery is continuing with some other person, admittedly when two or three Panchayaths were held, it can be inferred that at least some of the village people must be knowing this illegal intimacy between the petitioner and another person. If that being so, why the respondent has not made any effort to secure the presence of at least one of the villagers of his village to come before the Court and speak about such serious misconduct of the petitioner. Further, no materials are placed to show as to why the husband has tolerated such illicit intimacy of his wife with some other person for a period of ten years. Even considering age of R.W.2, she saw the incident when she was aged eight years, even after that husband and wife lived for ten years together, and one more child born to them (the last child). Therefore when knowing fully well the husband has kept quire without raising his little finger against the wife, therefore all these things creates serious doubt with regard to the conduct of the respondent why he has not raised this particular fact and taken appropriate action against the wife at the appropriate time. Therefore, at any stretch of imagination, it cannot be said that the adultery against the wife has been proved beyond reasonable doubt. As I have already said Sec.125 of Cr.P.C.., is virtually a criminal proceeding though it is having a mixture of civil liability. Therefore, at any stretch of imagination, it cannot be said that the adultery against the wife has been proved beyond reasonable doubt. As I have already said Sec.125 of Cr.P.C.., is virtually a criminal proceeding though it is having a mixture of civil liability. Therefore the proof of adultery should be of such a standard quality that the Court should not suspect the materials placed before the Court. The evidence should be of sterling quality to come to a definite conclusion that petitioner has been living in adultery. Other wise the consequences would be very disastrous may lead to a criminal liability of the petitioner for which she is punishable under section 494 of I.P.C. if any separate proceedings are initiated. Even for a moment assuming or accepting the fact that wife was living in adultery for some time, but later the husband cohabited with the wife even after having knowledge that she had been guilty of cohabiting with another person, and continued the matrimonial tie with her, that would be sufficient to constitute condonation of her acts. The husband’s condonation of adultery by the wife entitles the wife to claim maintenance. 17. Except the interested testimony of the husband and the testimony of the daughter, who has been living with her father and who has been taking care of her, cannot be made use of as a proof of adultery against the petitioner, in view of the surrounding suspicious circumstances narrated above. Therefore, I am of the opinion without visualizing all these circumstances in the case, the trial Court swayed away by the evidence of the daughter holding that no daughter will come forward to give evidence against her own mother, applying such crude principle has held that the wife has been living in adultery which assumption or imagination by the learned Magistrate, in my opinion, is not proper and correct. Therefore, I am of the opinion that the trial Court has committed a serious error in refusing to grant maintenance to the wife. 18. Now coming to the quantum of maintenance, the evidence of the respondent is not concentrated with regard to the allegations made in the petition with reference to his income, whatsoever she has stated, that the husband has got lot of agricultural properties also a house from which he has been getting more than Rs.10,00,000/- is not contraverted. 18. Now coming to the quantum of maintenance, the evidence of the respondent is not concentrated with regard to the allegations made in the petition with reference to his income, whatsoever she has stated, that the husband has got lot of agricultural properties also a house from which he has been getting more than Rs.10,00,000/- is not contraverted. But is only oral evidence placed before the Court by the petitioner. There are no other sufficient materials to show the exact income of Rs.10,00,000/-. Merely producing R.T.C. extracts or house extract is not sufficient to draw any inference as to what exactly the income of the husband. Nevertheless the existence of lands and a house to the husband is not disputed. 19. Looking to the above said circumstances, when no substantial material is available to assess the exact income of the husband, then the Court has to grant maintenance considering at least minimum requirement of the petitioner to live in the society by meeting out food, clothing and day to day expenses. Therefore I am of the opinion considering the cost of living, medical expenses, rent, etc., if I award an amount of Rs.3,000/- per month to the wife, it would meet the ends of justice. 20. If the petitioner has got any other material to show more income of the husband in future, she is at liberty to move the trial Court for enhancement of the maintenance by furnishing proper proof regarding the income of the respondent as and when required. With these observations the Revision Petition is allowed and consequently, the petition filed by the petitioner before the trial Court under Section 125 of Cr.P.C. is hereby allowed awarding maintenance of Rs.3,000/- per month from the date of petition filed by her before the Trial Court.