living in adultery or mere friendship with some man to Deny Maintenance

HIGH COURT OF JUDICATURE AT ALLAHABAD

CRIMINAL REVISION No. – 357 of 2009

Mahesh @ Mahesh Chand
vs
State Of U.P. & Others

Hon’ble Amar Singh Chauhan,J.
Citation: 2017 CRLJ(NOC) 147 ALL

This criminal revision has been filed against the judgement and order dated 09.1.2009 passed by Principal Judge, Family Court, Agra in Case No. 42 of 2006 (Smt. Veerwati and another Vs. Mahesh alias Mahesh Chand) whereby the application of the applicant-opposite party No. 2, filed under section 125 Cr.P.C. was allowed and maintenance at the rate of Rs. 2000/- per month has been granted to the wife and Rs. 700 per month to the minor daughter from the date of application.
The facts which are requisite to be stated for adjudication of this revision are that an application under section 125 Code of Criminal Procedure was moved by Smt. Veerwati stating therein that her marriage took place about 16 years back with Mahesh and they lived together as husband and wife. From their wedlock two children were born, out of whom son Vishan Singh is living with Mahesh and daughter Soniya is living with her. After the marriage revisionist Mahesh, who was drunkard, used to abuse, beat and torture her. He also used to bring men of bad character for the purpose of gambling and also the women in his house. He also keeps one Manju as his wife and on being objected by the applicant, she was subjected to beating. In a planned manner the applicant-opposite No. 2 was kicked out from the house in the clothes which she was wearing at that time. Stridhan of the applicant-opposite party No. 2 was retained by the revisionist. Thereafter revisionist never came to take her as well as her daughter and also filed a suit for divorce. It is further stated in the application that the revisionist Mahesh works in a hospital and earns Rs. 10,000-12,000/- per month, which he spent on drink, gambling and enjoyment with women.

The revisionist-Mahesh filed his reply in which he has stated that his marriage took place on 27.4.1978 and from their wedlock one child namely Vishan Singh was born, who is now aged about 18 years and living with the revisionist. The applicant-opposite party is living in adultery and earning Rs. 3000/- per month from the doing the work of labourer. It is also submitted that the revisionist is employed in a nursing home and only earns Rs. 1500/-.

The learned Principal Judge, Family Court, Agra after evaluating the evidence adduced by the parties, granted maintenance to the wife, opposite party No. 2 at the rate of Rs. 2000/- (rupees two thousand) per month and Rs. 700/- ( rupees even hundred ) to opposite party No. 3 minor child.
Heard learned counsel for the revisionist, learned counsel for opposite party Nos. 2 and 3 and learned Additional Government Advocate and perused the record of the case.

Learned counsel for the revisionist submits that once the divorce petition filed by the revisionist was allowed, the maintenance granted by the learned Principal Judge, Family Court, Agra is bad in eye of law.

Learned counsel for the revisionist further submitted that admittedly opposite party No. 2 is living in adultery since 1997, hence opposite party No. 3 is not his daughter and learned Principal Judge, Family Court, Agra erred in granting maintenance to opposite party No. 3 also.

On the other hand, learned counsel for opposite party Nos. 2 and 3 and learned AGA supported the judgement of the learned Family Judge.
Before adverting to the claim of the parties, it would be useful to quote section 125 Cr.P.C.:
Order for maintenance of wives, children and parents
125. (1) If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) His legitimate or illegitimate minor child, whether married or not unable to maintain itself, or
(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, or
(d) his father or mother, unable to maintain himself or herself,

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a Magistrate of 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.”

There can be no shadow of doubt that an order under section 125 Cr.P.C. can be passed if a person despite having sufficient means neglects or refuses to maintain the wife. Sometimes, a plea is advanced by the husband that he does not have the means to pay as he does not have a job or his business. These are only bald excuses and in fact they have no acceptability in laws. If the husband is healthy, able bodied and is in a position to support himself, he is under the legal obligation to support his wife.

Hon’ble Supreme Court in Chaturbhuj Vs. Sita Bai, (2008) 2 SCC 316 has held the grant of maintenance to wife is a measure of social justice. The court held as under:

” Section 125 Cr.P.C. is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in captain Ramesh Chander Kaushal v. Veena Kaushal, (1978) 4 SCC 70 falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat (2005) 3 SCC 636.

A Division Bench of Madhya Pradesh High Court in the case of Durga Singh Lodhi Vs. Prembai and others, 1990 Cr.L.J. 2065 has held that mere absence of visible means or real estate will not entitle such a person to escape the liability to pay maintenance awarded under Section 125(1), as even at the stage of enforcement of the order under Section125(1), an able bodied healthy person capable of earning, must be subjected to pay maintenance allowance. If, with this visible capacity to earn, he avoids payments, it has to be held that he has so done for no sufficient cause. If such a person avoids to discharge that obligations despite issuance of a distress warrant, he can be sentenced to imprisonment for a term specified in sub-section (3) of Section 125 Cr.P.C..

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The contention of the learned counsel for the revisionist that once the divorce petition filed by the revisionist was allowed, the maintenance granted by the learned Principal Judge, Family Court, Agra is bad in the eye of law has no leg to stand in view of Explanation (b) of Section 125 Cr.P.C.
Hon’ble Supreme Court in Rohtash Singh Vs. Smt. Ramendra and others, 2000 (2) SCR 58 has held as under:

” Admittedly, in the instant case, the respondent is a divorced wife. The marriage ties between the parties do not subsist. The decree for divorce was passed on 15th of July, 1995 and since then, she is under no obligation to live with the petitioner. But though the marital relations came to an end by the divorce granted by the Family Court under Section 13 of the Hidu Marriaage Act, the respondent continues to be “wife” within the meaning of Section 125 Cr.P.C. on account of Explanation (b) to Sub-section (1) which provides as under:

“Explanation-For the purposes of this Chapter
(a) ………………………………………….
(b) ” wife” includes woman who has been divorced by,or has obtained a divorce from her husband and has not remarried. “

On account of the Explanation quoted above, a woman who has been divorced by her husband on account of a decree passed by the Family Court under the Hindu Marriage Act, continues to enjoy the status of a wife for the limited purpose of claiming maintenance allowance from her ex-husband.
So far as the decree of divorce is concerned, learned Principal Judge, Family Court neither granted any permanent alimony to the wife of the revisionist nor given any reasoned findings that how the wife of the revisionist does not want to live with husband, whereas out of their wedlock two children were born. A Division Bench of this Court in Smt. Poonam Gupta Vs. Ghanshyam Gupta, AIR 2003 All 51, which was filed against the order of learned Family Judge Kanpur Nagar allowing the suit for divorce under section 13 of the Hindu Marriage Act filed by the husband on the condition that he will pay a sum of Rs. 5,00,000/- (rupees five lac) to the wife and daughter. The division Bench modified the order of learned Family Judge, Kanpur Nagar and directed the husband to pay a sum of Rs. 8,00,000/- (rupees eight lac) to the wife, out of which Rs. 2,00,000/- (rupees two lac) shall be transmitted to the District Judge, who shall get the said amount deposited in the name of the child and interest accruing on such deposit would be payable to the wife every six months which would be spent by her for the maintenance of the child. The amount kept in fixed deposit shall be made available to the child on her majority. It was further observed that it was not practically possible for the plaintiff and opposite party to live together as husband and wife, even though the Court granted permanent alimony to the wife, the only object behind this is that there should be no vagrancy.
Contention of the learned counsel for the revisionist that opposite party No. 2 is living in adultery since 1997, hence opposite party No. 3 is not his daughter has no substance in view of Section 125 (1)(b) Cr.P.C. Further revisionist could not prove his case before the learned Family Judge that his wife opposite party No. 2 is living in adultery.

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A Division Bench of Madras High Court in the case of K. Veeriah Vs. Muthulakshmi and others, 1999 Cr.L.J. 624, while dealing with the ground of living in adultery has held as under:

“The term “adultery” is to be understood in the light of the social ideas of the community as being a serious breach of the matrimonial tie. “Living in adultery”- mere friendship with a man does not amount to adultery within the meaning of Section 125 (4) Cr.P.C.. “Living in adultery” means the following of a course of continuous adulterous conduct. While determining the factum of “Living in adultery” the Court must consider evidence on living in quasi-permanent union with man with whom she was allegedly committing adultery. It is for the husband to prove that the wife is continuously committing violation of the marriage bed, indulging in adulterous life, by living in quasi-permanent union with her paramour. In other words, “living in adultery” means an outright adulterous conduct where the wife lives in a quasi permanent union with a man with whom she is committing adultery, shortly before or after the petition for maintenance. It is only when the husband proves satisfactorily beyond reasonable doubt that his wife was living in adultery, she will not be entitled to maintenance and not otherwise. When an allegation of adultery is made against the wife, the Court is bound to enquire into her conduct. In the said enquiry, the husband has to begin his case and the wife must be given an opportunity for adducing evidence to rebut the allegation of “living in adultery.” The words “living in adultery” are merely indicative of the principle that a single or occasional lapse from virtue is not a sufficient reason for refusing maintenance. To reiterate the continued adulterous conduct is what is meant by “living in adultery.”

In a recent decision of Hon’ble Supreme Court in the case of Shamima Farooqui Vs. Shahid Khan, Criminal Appeal Nos. 564-565 of 2015, decided on 06.4.2015, Hon’ble Supreme Court has held as under:

“A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one. As long as the wife is held entitled to grant of maintenance within the parameters of Section 125 Cr.P.C., it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar.”

In this case the revisionist has failed to prove that his wife Smt. Veerwati, without any sufficient reason, refused to live with him and that she is able to maintain herself.

In view of what has been indicated herein above, I find that the impugned order does not suffer from any illegality or impropriety. The revision lacks merits. It is accordingly dismissed.

Interim order dated 05.2.2009 stands vacated.

Dated: 22.9.2016

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