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Gujarat High Court · body

2015 DIGILAW 761 (GUJ)

Giraben Sandipbhai Jotangiya v. State of Gujarat

2015-08-04

SONIA GOKANI

body2015
JUDGMENT : 1. Nani Palkhiwala, in his Book, “We, the Nation.. The Lost Decades” in the context of attack on judiciary by the litigants and others had said that “Character Assassination is a National Sport of India.... Making allegations to scandalize the person is the easiest task. To attack and allege against the character of any person without any semblance of proof and without any matching seriousness is a widespread malaise. When more and more allegations are made in matrimonial cases of spouse living in adultery, issue assumes seriousness. What does it amount to ‘living in adultery’ and what nature of proof needs to be adduced when this is alleged by the spouse to deny maintenance to the wife under the exception carved out under Section 125 of the Code? 2. Both these Revision Applications have arisen from the common order dated 22.04.2014 passed by the learned Presiding Officer, Family Court, Rajkot granting the interim maintenance of Rs.10,000/- to the wife and Rs.5,000/- to the child. The wife is aggrieved by the amount of Rs.5,000/-, as according to her, she ought to have been granted Rs.15,000/- and Rs.10,000/- should have been ordered for child, as monthly maintenance. She has preferred Criminal Revision Application No. 537 of 2014 for enhancement of the maintenance. Whereas being aggrieved by the order impugned, the husband has preferred Criminal Revision Application No. 728 of 2014 seeking quashment of the said order dated 22.04.2014. The wife and the Son are to be addressed as applicants Nos. 1 and 2 respectively and the husband, who is otherwise the petitioner of Criminal Revision Application No. 728 of 2014, is to be referred as respondent No. 2 in this order. 3. The brief facts of the case are that the applicant No.1 and respondent No. 2 were married in the year 1997 as per the Hindu rites and customs. The applicant No. 2 was borne out of their wedlock. It is submitted that the matrimonial dispute started between the parties when the applicant No.1 left her matrimonial home on 27.02.2008. 3. The brief facts of the case are that the applicant No.1 and respondent No. 2 were married in the year 1997 as per the Hindu rites and customs. The applicant No. 2 was borne out of their wedlock. It is submitted that the matrimonial dispute started between the parties when the applicant No.1 left her matrimonial home on 27.02.2008. Thereafter, a family suit came to be filed by the respondent No. 2 for dissolution of marriage being Family Suit No. 614 of 2010 and the applicant No.1 filed an application being Criminal Miscellaneous Application No. 554 of 2010 under Section 125 of the Code of Criminal Procedure for maintenance (‘the Code’ for short) in the Family Court at Rajkot wherein the Court has granted interim maintenance to the tune of Rs.5,000/- to applicant No.1 and Rs.10,000/- to the applicant No. 2 and eventually, after availing an opportunity of hearing to both the parties of adducing the oral as well as documentary evidence, such amount was confirmed. 4. Learned advocate Mr. Krunal Shahi appearing for the applicants has urged that the husband is working with the G.E.B. as Plant Operator and as per the salary slip, his salary is Rs.35,000/- per month. However, such an amount must have enhanced by now considering the month in which the maintenance is awarded. And, again, if the unit method is adopted, then also, the amount of Rs.10,000/- to the wife and Rs.5,000/- to the child is on lesser side. He urged that the education of applicant No. 2 is getting costlier every day and value of money is diminishing. 5. Learned advocate Mr. Ashish Dagli appearing for the respondent No. 2 has urged that the wife is not entitled to any amount of maintenance as the allegation of the husband is that she is living in adultery. With a view to ensure that the dispute does not affect the life of the applicant No. 2, evidence was not adduced before the trial Court in this regard. He has not examined the witnesses nor has he produced the documents through any witness to substantiate this charge. He of course pleaded that the wife was living in adultery and he himself had adduced the documents before the Court concerned. He has not examined the witnesses nor has he produced the documents through any witness to substantiate this charge. He of course pleaded that the wife was living in adultery and he himself had adduced the documents before the Court concerned. According to him, the Court ought to have believed the documentary evidences laid before it and ought not to have granted the maintenance inasmuch as wife was living in adultery and therefore, she is not entitled to any amount of maintenance under the law. 6. Considering the young age of the applicant No. 2 and also young age of spouses as well, this Court deemed it fit to attempt for amicable settlement of the dispute between the parties. However, it appears that the parties have failed to arrive at any solution. Therefore, these matters are being heard on merit. 7. Two questions arise before this Court for consideration. Firstly, whether the Family Court has committed any error in granting the maintenance to the applicant No. 1 who is alleged to have been living in adultery by the respondent No. 2? And secondly, if the first question is answered in negation, whether the amount of maintenance granted by the Family Court is adequate or not? 8. Taking the first issue first, the allegation of spouse living in adultery is very easy to level and extremely difficult to prove and the same needs to be examined at the outset on legal side. 9. The offence of ‘Adultery’ as per Section 497 of the Indian Penal Code is defined as under:- “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” 9(a) This offence by its very definition is possible to be committed by a man and not by a woman. In such case the wife shall not be punishable as an abettor” 9(a) This offence by its very definition is possible to be committed by a man and not by a woman. This section applies to act of sexual intercourse with a married woman by another man, without the consent or connivance of husband of that woman and where such act does not amount to the offence of rape. 9(b) Cases when allegation is against a person who has, 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 relation not amounting to the offence of rape, would become an offence of adultery. It is a voluntary extra marital relationship of a married person with someone other than his spouse. Adultery per se is not an offence, for it to become so, it must be without consent or connivance of the husband of the married woman with whom the person enters into such act. 9(c) The ingredients which need to be proved are (i) a man has sexual intercourse with a woman (ii) the woman is a wife of another man (iii) the man knows or has a reason to believe that woman to be wife of another (iv) the husband has not consented or connived. This provision is often attacked on the ground of having positive bias towards women. 9(d) The Apex Court in the case of W. Kalyani vs. State Tr Inspector of Police and another, 2012(1) Crimes 13(SC) has held and observed that “the provision is currently under criticism from certain quarters for showing a strong gender bias for it makes position of a married woman almost as a property of her husband. But in terms of law as it stands, it is evident from a plain reading of section that only a man can be proceeded against and punished for offence of adultery. Indeed, the Sections provides expressly that the wife cannot be punished even as an abettor. Thus, the mere fact that the appellant is a woman makes her completely immune to the charge of adultery and she cannot be proceeded against for that offence”. 9(e) In common parlance, adultery connotes “criminal unchastity, extra marital relationship, illicit sexual intercourse, infidelity, unlawful carnality or redefining of marriage wows”, R.R. Kathuria’s Law of Crimes and Criminality (3rd Edition). 10. Thus, the mere fact that the appellant is a woman makes her completely immune to the charge of adultery and she cannot be proceeded against for that offence”. 9(e) In common parlance, adultery connotes “criminal unchastity, extra marital relationship, illicit sexual intercourse, infidelity, unlawful carnality or redefining of marriage wows”, R.R. Kathuria’s Law of Crimes and Criminality (3rd Edition). 10. The High Court of Orissa in the case of Rachita Rout v. Basanta Kumar Rout reported in 1986 LawSuit (Ori) 229 was considering the issue of maintenance under Section 125 of the Code wherein the allegation of the husband that the wife was living in adultery and therefore, she is disentitled to any amount of maintenance was examined. 10.1 Sub-section (4) of Section 125 of the Code provides that no wife shall be entitled to receive any amount of maintenance 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. The expression “living in adultery” has been discussed and decided by the Court to show that this connotes a course of adulterous conduct more or less continuous. An occasional lapse would not be a sufficient reason for refusing maintenance within the ambit of Sub-section (4) of Section 125 of Code. 10.2 What is the requirement of the trial Court is to probe and find out whether at or about the time of the application, there has been an adulterous conduct on the part of the applicant. The Orissa High Court has also held that there must be clear proof of adultery and a suspicion nurtured by the husband will not disentitle the wife to receive the maintenance under the Code. The direct evidence of adultery seldom can be given, but at the same time, there must be some evidence to prove the allegations of adultery and Section 125(4) of the Code being an exception to the main section, it is for the husband to establish that the wife is living in adultery. 10.3 While so holding, the Court has also taken note of another ratio in the case of Ananta Bhottamisra v. Smt. Saraswati Bhottamisra reported in (1985) 59 cut LT 11, where the wife was denied any amount of maintenance on the ground that she was living in adultery. 10.3 While so holding, the Court has also taken note of another ratio in the case of Ananta Bhottamisra v. Smt. Saraswati Bhottamisra reported in (1985) 59 cut LT 11, where the wife was denied any amount of maintenance on the ground that she was living in adultery. In Revision, the Sessions Court reversed the said finding on the ground that no proper perspective has been kept in mind. The Orissa High Court upheld the conclusion of the Revisional Court of Sessions by holding that unless such a plea is established by clear and acceptable evidence, maintenance cannot be denied. And, vague evidence with regard to the company of the opposite party with some persons, without anything more, could not lead the Court to hold that person had been living in adultery. 11. The Madhya Pradesh High Court in the case of Ravendra Singh v. Kapsi Bai reported in 1990 LawSuit (MP) 70 while dealing with the issue of maintenance was required to answer the question as to whether the wife is disentitled to claim maintenance in absence of any proof that she is living in adultery. The Court has held that the proceedings under Section 125 of the Code cannot be described as a trial of an offence. However, the same also cannot be termed in the nature of civil proceeding, but can be said to be of quasi criminal in nature. Whether wife in fact had admitted alleged act of adultery, the Court has held that the same cannot be looked into being not in consonance with the words “living in adultery” appearing in Section 125(4) of the Code. It is for the husband to prove that the wife is continuously committing violation of the marriage wows on indulging in adulterous life. The Madhya Pradesh High Court, in paras 7, 8 and 9, has held as under: “[7] No doubt proceedings under Section 125 cannot be described as a trial for an offence. However, the same also cannot be termed in the nature of civil proceedings. But can be said to be of quasi criminal in nature and this being so, in such proceedings which is of criminal in nature, incriminating evidence resulting in admission cannot be put to vigorous test and ignoring this principle even if some document is taken on record, the same cannot be used against the party concerned. But can be said to be of quasi criminal in nature and this being so, in such proceedings which is of criminal in nature, incriminating evidence resulting in admission cannot be put to vigorous test and ignoring this principle even if some document is taken on record, the same cannot be used against the party concerned. In the instant case, even if Exhibit D2, is accepted to have been got written by the wife admitting the alleged adultery, the same cannot be looked into being not in consonance with the words ‘living in adultery’ appearing in Section 125(4) Cr.P.C. [8] Besides this the words used ‘living in adultery’ in subsection (4) of Sec.125 Cr.P.C. Of limited amplitude, inasmuch as it is for the husband to prove that the wife is continuously committing violation of the marriage bed, indulging in adulterous life, i.e. living in quasi permanent union with Jang Bahadur Sharma with whom according to Ravendra Singh she was caught red banded. To establish this, more than one instance of adultery has to be brought home to the knowledge of the wife, thereby constituting the term ‘living in adultery’ within the meaning of subsection (4) Sec. 125 Criminal ‘Procedure Code. Admittedly, nothing of that sort is brought home to the knowledge of the wife, in the instant case. [9] The evidence relating to this aspect, if considered in its totality, barring the two instances of which Ravendra Singh condoned one and except the second one which now takes the place or isolated act of adultery, there is no other evidence to infar that Scot. Kapsi Bai is living in adultery.” 12. The Bombay High Court in the case of Chandrakant Gangaram Gawade v. Sulochana Chandrakant Gawade reported in 1995 LawSuit (Bom) 428 has considered the decision of Orissa High Court so also of the Madhya Pradesh High Court, to hold that the question whether the wife is living in adultery is purely a question of fact and both the parties will have to plead and will prove their respective allegations. However, eventually it is held that whether the allegation against the wife was a single act of lapse on the part of wife or it was a continuous course of adulterous behaviour requires consideration. However, eventually it is held that whether the allegation against the wife was a single act of lapse on the part of wife or it was a continuous course of adulterous behaviour requires consideration. It further held that a mere stray or single lapse on the part of the wife is not sufficient to bring her conduct within the meaning of “living in adultery” provided in Section 125(4) of the Code. 12(a) Reference is made of the decision of the Madras High Court of Kasturi v. Ramasamy reported in 1979 Cr.L.J 741, wherein it is held and observed that “living adultery” means outright adulterous conduct on the part of the wife and stray act of illicit relationship will not amount to “living in adultery”. 12(b) Another decision rendered in the case of Shravan v. Anjanabai reported in 1985 Cr.L.J. 1213, which also finds its reference in the above judgment, the Court has held and observed that where the husband pleaded that the wife is living in adultery, mere one instance of lapse from the path of virtue will not amount to wife living in adultery and there has to be a course of adulterous conduct on the part of the wife to disentitle her from maintenance. There was admission of the wife during the investigation of a criminal case that she had illicit relation with another person and this too was treated as single lapse as per her admission. 13. The Kerala High Court in the case of Mariyumma v. Mohammed Ibrahim reported in 1979 LawSuit (Ker) 84 was considering in revisional jurisdiction the allegation against the wife of her living in adultery. Dealing extensively with the law on the subject, it held that the same applies to those women whose marriage subsisted. In that case, the parties were following Islam and six children were borne out during their wedlock, three of them died and other three survived and the husband divorced the wife by pronouncing ‘talak’. The petition was filed under the new Code of 1973 gave the right to claim maintenance to a divorced woman. The husband opposed the claim for maintenance on the ground that the wife divorced by him was living in adultery and that she was living in adultery even during the subsistence of the marriage and such adultery was the cause of the divorce. The husband opposed the claim for maintenance on the ground that the wife divorced by him was living in adultery and that she was living in adultery even during the subsistence of the marriage and such adultery was the cause of the divorce. 13.1 The Full Bench of the Kerala High Court has held that there was no occasion to examine the section in the manner pleaded for women divorced and held that Section 125(4) will apply only to the female spouse in a subsisting marriage. The Court had observed that the question whether the wife was living in adultery and therefore, they were not called upon to consider the question whether “is living in adultery” in Section 125(4) calls for proof of present conduct and not proof that the wife was “living in adultery” and therefore, they do not want to go into the evidence on that question. 13.2 What can be culled out thus is that the single act of infidelity cannot be termed as “living in adultery”. Strict proof of living in adultery as expected in the criminal proceedings cannot be insisted upon. At the same time, it is not civil proceeding in the stricto senso and thus, the proof which is desirable is stricter than required under civil proceedings and less rigorous than expected in criminal proceedings. 14. Reverting back to factual matrix of the instant case, the respondent No.2 husband pleaded before the Family Court that the applicant No.1 – wife was living in adultery and the application was made to the Department of Company against one Mr. Hemantbhai Chauhan who is serving as Deputy Engineer in the G.E.B alleging that his wife is having illicit relation with him. The preliminary inquiry was initiated against the said person, Mr. Hemant Chauhan. Pursuant to such application for alleged illicit relationship of his, which has been communicated to Mr. Chauhan through the confidential letter by the Superintending Engineer (TR), Nadiad, wherein the conclusion arrived at the end of preliminary inquiry is as follows: “Conclusion: This is a very sensitive issue. From the statement of (1) Shri Sandip Jotangia, P.O.I. (2) Shri Chauhan, Dy. Engr, and (3) Residents of employees of 220Kv Salejada S/S Colony. It is very difficult to establish that, their was a cross relationship between Shri Chauhan, Dy. Engr, and wife of Shri Sandip Jotangia. From the statement of (1) Shri Sandip Jotangia, P.O.I. (2) Shri Chauhan, Dy. Engr, and (3) Residents of employees of 220Kv Salejada S/S Colony. It is very difficult to establish that, their was a cross relationship between Shri Chauhan, Dy. Engr, and wife of Shri Sandip Jotangia. Further, some of the employees had seen Shri Chauhan, D.E. giving signals to wife of Shri Sandip. Few residents are not agreed with the allegation made against Shri Chauhan, Dy. Engr. Hence there is no concrete evidence/circumstances that prove the cross relationship between Shri Chauhan, Dy.Engr and wife of Shri Sandip Jotagia, P.O.I. Further undersigned could not take statement of Smt. Gira Jotagia, wife of Shri Sandip Jotagia as she has left her house and at present living with her parents at Rajkot. However, the only things which some what leads to believe that there was a cross relationship between Shri Chauhan, Dy.Engr, and wife of Shri Sandip Jotagia, is the Mobile recording clip which is taped by Shri Jotagia during the hot discussion took place on 27.2.08 and produce to the undersigned during the preliminary inquiry. On listening of mobile clip it is heard that the wife of Shri Jotangia accepts the relationship with Shri Chauhan.” 15. It is reflected that the statement made by the respondent No.2 to his surprise, he has stuck to the said statement made vide his letter dated 08.03.2008 addressed to the Superintending Engineer, Nadiad. He has said that his wife is not staying with him and no F.I.R. was lodged as he was afraid of defamation and also considering the future of young daughters of Mr. Chauhan. The statements of other neighbours were taken into account and also the statement of petitioner was not obtained as she left her home and living with her parents. 16. The Family Court in its order impugned has taken note of the fact that the allegation is against the applicant wife living in adultery. Applicant-wife is examined on oath and she had been cross-examined at length. She denied all the allegations levelled against her in clear terms. As far as the respondent husband is concerned, barring his own deposition on oath at Exh.35, he has not examined anyone. He has made only bare allegation of illicit relationship against his wife. Applicant-wife is examined on oath and she had been cross-examined at length. She denied all the allegations levelled against her in clear terms. As far as the respondent husband is concerned, barring his own deposition on oath at Exh.35, he has not examined anyone. He has made only bare allegation of illicit relationship against his wife. He has admitted that no evidence has been produced before the Court to substantiate such allegation of illicit relationship of his wife. He has denied that the allegation of living adultery has been made to avoid any responsibility of the maintenance. It was argued before the Family Court that for the better future of his son, no further evidence has been adduced and no witness has been examined. The Court, after due consideration, has held that respondent No.2 has failed to prove that his wife was living in adultery. 17. It appears that the preliminary inquiry has been conducted at the level of the Superintending Engineer. He had issued the confidential communication by initiating the preliminary inquiry against one Mr. Chauhan, Dy. Engineer. The respondent No.2 was mainly an instrument in levelling the allegation of illicit relationship against his own wife, of course, the documentary evidences which have been produced before this Court reveal that some of neighbours had raised objections to the conduct of the Deputy Engineer Mr. Chauhan, none of whom was although presented before the trial Court. The report of the preliminary inquiry concluded with the mention of recorded version of the dialoguge of the applicant No.1 with respondent No.2. The heated discussion took place on 27.02.2008 of which neither transcription nor the C.D. was produced before the Court concerned nor those details have been verbalized in the oral evidence of the husband. Assuming that such evidence was available with the respondent No.2, he ought to have proved when he has alleged that his wife was living in adultery and had made a request the Court to exercise powers Section 125(4) of the Code to deny her maintenance. To say on one hand on the ground that to save his Son from future embarrassment, no further evidence was adduced though available and to continue to allege all along in these proceedings, plea of adultery is surely an assailable contention. To say on one hand on the ground that to save his Son from future embarrassment, no further evidence was adduced though available and to continue to allege all along in these proceedings, plea of adultery is surely an assailable contention. On one hand, his entire defence is based on such allegation and on the other hand, when it comes to adducing proof, he attempts to shield behind Son’s welfare. Had it been so, such stand could not have been taken in the first place. 18. Be that as it may, assuming that the respondent No.2 has orally sought to prove the allegation. What is required to prove is of living in adultery continuously. Continuous act of living in adultery on the part of the wife would disentitle her to any amount of maintenance. There is no proof essentially much less the requisite proof of showing that the wife had continued adulterous act and therefore, in opinion of this Court, the learned Presiding Officer, Family Court, Rajkot has not committed any error in believing the contentions in granting the amount of maintenance. 19. The second question is with regard to the quantum of maintenance which is solely based on the salary slip which is adduced of the month of December 2013 wherein the gross salary is of Rs.35,000/-, after permissible deduction. As per unit method, the Family Court has directed the respondent No.2 to pay Rs.10,000/- to the applicant No.1 wife and Rs.5,000/to the applicant No.2 – the son, as monthly interim maintenance, keeping an amount of Rs.10,000/- for the respondent No.2 – husband, who is otherwise entitled to receive other perquisites while in service with the G.E.B. Order of grant of quantum of maintenance is also faultless, no change is required to be made in that, in these Revision Applications. According to the applicant-wife, her entitlement is Rs.15,000/- (Rupees Fifteen Thousand only) and of applicant No.2, Rs.10,000/- (Rupees Ten Thousand only). It is contended that the respondent’s salary must have been enhanced by now. 20. Nothing conspicuous appears to be left out in the order impugned, requiring any indulgence. 21. Respondent, if not already paid the arrears of maintenance amount, he shall do it within twelve weeks. It is contended that the respondent’s salary must have been enhanced by now. 20. Nothing conspicuous appears to be left out in the order impugned, requiring any indulgence. 21. Respondent, if not already paid the arrears of maintenance amount, he shall do it within twelve weeks. Copy of the order shall be sent to the Regional Head Office of the Employer of the respondent, who shall deduct the amount from his salary and deposit the same with the Registrar, Family Court on a monthly basis. The Registrar, Family Court shall be furnished the details of bank account by the respondent for the Court to deposit the amount of maintenance of both the petitioners, without insisting on presence of either of the petitioners every month. 22. As far as possible, the Family Court should ensure such arrangement in all matters where respondent husband is in employment, public or private. This is only one time exercise and it may not only save enormous manpower and important hours of the Court in administration of justice, but would also help the litigant women and children from going post to pillar for their entitlement. 23. With this, both the Revision Applications are dismissed with no order as to costs.