This criminal revision has been filed against the judgment and order dated 28.01.2002 passed by the Sessions Judge, Sonbhadra, allowing Criminal Revision No. 6 of 2000 (Hemwanti vs. Rajendra Bahadur Singh) filed against the order dated 16.11.1999 passed by the Civil Judge (J.D.)/Magistrate, Robertsganj, District Sonbhadra in Criminal Case No. 2 of 1996 under Section 125 Cr.P.C., filed by Hemwanti Devi against her husband Rajendra Bahadur Singh.
I have heard learned counsel for the parties and gone through the material on record.
It appears that Smt. Hemwanti Devi filed an application under Section 125 Cr.P.C. claiming maintenance, alleging that marriage had taken place 12 years back but husband had married one Meera Devi and turned Smt. Hemwanti Devi out of his house six months back and since then she has been living at her father's house. She has no source of income. A sum of Rs. 500/- per month was claimed as maintenance. Husband- Rajendra Bahadur Singh filed written statement denying the allegations. He admitted that marriage had taken place fifteen years back. She has been visiting her brother-in-law (sister's husband) and her parents without the permission of the opposite party, used to remain away from the house of the husband for months together, as such, her conduct is not good. She had left his house nearly 12-13 years ago and despite efforts, she did not come back. No harassment was caused to her. Moreover, he has no sufficient income to provide maintenance to her.
The applicant examined herself as P.W.-1, Babulal Singh and Nand Lal as P.W.-2 & 3 respectively. Husband examined himself as D.W.1, Kamta Singh as D.W.-2 and Shiva Shankar as D.W.-3.
Learned Magistrate came to conclusion that applicant-wife had illicit relationship with her brother-in-law, as such, she was not entitled to any maintenance. Order dated 16.11.1999 passed by the Civil Judge (J.D.)/Magistrate, Robertsganj, District Sonbhadra in Criminal Case No. 2 of 1996 under Section 125 Cr.P.C., Civil Judge was challenged by means of revision before Sessions Judge, who allowed the same on 28.01.2002 and awarded maintenance @ Rs. 500/- per month from the date of application.
This very judgment has been challenged by husband- revisionist.
Submission of learned counsel is that Magistrate has given a finding regarding adultery, which finding cannot be challenged in revision as such, order passed by Sessions Judge is not sustainable.
Upon perusal of the record, I find that order passed by Sessions Judge does not call for interference. Adultery is not to be assumed hypothetically. There has to be positive and clinching evidence for adultery. Learned Magistrate has wrongly placed the burden upon the wife. Husband had to prove the adultery. Finding of Learned Magistrate that since wife-applicant did not produce her brother-in-law, therefore, presumption of adultery is to be drawn is not, at all, correct approach. Once she denies charge of adultery, it is the husband who has to establish adultery by positive proof.
Evidence adduced by husband does not at all establish adultery. Nand Lal (P.W.3) does not know the name of brother-in-law. On the other hand, he specifically states that husband is living with Meera Devi, from whom four children are said to have been born.
Husband, in his statement has stated that he saw his wife in compromising position 10-12 years ago. Thereafter, he says 15-16 years ago, both were seen sitting together. In Panchayat, husband had not alleged adultery. On the other hand, it has come on record that since applicant's sister was alive, there is nothing wrong if she visits her husband or was living with her brother in parental house.
Shiv Shankar-D.W.3 did not see anything wrong and did not suspect any illicit relationship.
Requirement of statute is that 'wife is living in adultery'. This contemplates regular flirtations and not one or two stray instances. Although, husband has failed to prove adultery from his evidence, even one instance of seeing her with brother-in-law does not meet the statutory requirement dis-entitling a married wife to maintenance.
Hon'ble High Court of Madhya Pradesh in the case of Mt. Durghatia vs. Ayodhya Prasad [1953 Cri LJ 1214], has held as under :-
"Even supposing a child had been conceived in adultery, by itself it is insufficient to hold that she "lives in adultery" and cannot get what is called bare maintenance. The law does not compel the husband to take back and give conjugal rights to a wife who has committed one act of adultery, it he is not prepared to forgive her. But the law can compel him to grant maintenance on the scale of bare subsistence where the lapse is a single isolated one, and also where, even after a systematically impure life, the woman has shown complete repentance. Bare maintenance in these circumstances is not equivalent to a Restoration of her status and the washing away of the stain of adultery, but a requirement in the interest of public policy by Hindu Law which in its orthodox form, practised by the higher castes, does not allow divorce, and treats marriage as an indissoluble sacrament. A plaintiff, who alleges that the defendant "lives in adultery" has to prove a course of conduct over some period with repetition of adultery, with the same or more than one person. Between an individual lapse, and life as a common prostitute, there are gradations of increasing impurity; where exactly the occasional lapse deepens into a "life in adultery" is a question of fact depending upon the repetition and the brazenness of the conduct, the signs of remorse, and readiness to turn back; but it certainly begins at a stage below the first lapse. Even if the plaintiff's own story is accepted, we have nothing more than a single act on the part of the defendant."
Hon'ble Bombay High Court in the case of Chanda Preetam Wadate vs. Preetam Ganpatrao Wadate and Anr. [2002 Cri LJ 1397], has held as under :-
" 24. Thus, the expression "living in adultery" in Section 125(4), Criminal Procedure Code has to be a continuous course of adulterous conduct and stray instances of departure from virtue would not be sufficient to deny maintenance to wife. The fact that wife is living in adultery has to be established by the husband. In quasi-criminal proceedings, the standard of proof would be preponderance of evidence."
It is therefore apparent from the language of Section 125 that adultery has to be a continuous affair and one or two instance would not dis-entitle a wife to maintenance contemplated under Section 125 Cr.P.C.
Sessions Judge has recorded the finding that Rajendra Bahadur Singh has kept one Meera Devi for the last 13 years, from whom four children were born. This alone furnishes sufficient ground to live separately, as such, on the ground of separate living, maintenance could not have been refused.
It may be stated that husband has admitted her marriage with Meera Devi and birth of four children from her. Both defense witnesses also admitted husband's relationship with Meera Devi as husband and wife. Sessions Judge found that Rajendra Bahadur Singh had married Meera Devi and four children were also born out of the wedlock, thus, wife had sufficient reason to live separately, who is entitled to maintenance. Adultery was not found proved and there is nothing wrong in this finding.
In these circumstances, Sessions Judge is justified in interfering in revision. Section 397 Cr.P.C. permits revisional court to examine the correctness of the order and this language is quite different from the language of Section 115 C.P.C.
In the case of Smt. Nao Shaba Khanam vs. Ishtiaq Khan and Ors. passed in Criminal Revision No. 1571 of 1988, it has been observed that if approach of trial court to the evidence is wholly perverse, revisional court can interfere with the finding of fact.
In these circumstances, I do not find it a fit case for interference. Revision is liable to be dismissed and is accordingly dismissed.
Order Date :- 4.5.16 Nitesh