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No effect of Section 125 if divorce on the ground of adultery


Criminal Revision No. 98 of 1996 and Criminal Misc. No. 6013 of 1996

Decided On: 10.04.1996

Appellants: Des Raj
Respondent: Meena Rani

Hon’ble Judges:M.L. Singhal, J.

For Appellant/Petitioner/Plaintiff: Anuj Raura, Adv.For Respondents/Defendant: Darshan Singh, Adv

Subject: Family
Subject: Criminal
Catch Words:Acts/Rules/Orders:Criminal Procedure Code (CrPC), 1973 – Section 125; Indian Penal Code – Section 497

Disposition:Revision dismissed


M.L. Singhal, J.

1. Meena Rani (wife) instituted petition under Section 125 of the Criminal Procedure Code against her husband Des Raj whereby she claimed maintenance to the tune of Rs. 1,000/-per month. It has been alleged by her that her husband is a drunkard. He has neglected her and has refused to maintain her. Her husband is a tailor at Chandigarh earning Rs. 200/250 daily. Besides, he owns landed property in V. Chak Meerpur which yields him income to the tune of Rs. 50,000/- per year. She on the other hand has no means wherewith to maintain herself.

2. Respondent-husband resisted the prayer of the wife that the wife is not entitled to maintenance as she was indulging in adultery. Husband is supposed to maintain his wife if she is faithful to the marriage bed. She was caught red- handed in the act of sexual intercourse with the husband of her sister namely Ranjit Singh. It was denied that he ever neglected or refused to maintain his wife. She left the matrimonial home of her own with a 11 her ornaments and clothes. It was denied that he is running any tailoring business. He has no sufficient source of income to maintain his wife. He has to maintain his aged parents, younger brothers and sister. She is on the other hand is a matriculate and an embroiderer and earning Rs. 50/- daily. She can well maintain herself with her own earnings.

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3. Vide order dated 23.11.1995, Magistrate allowed her (Meena Rani) maintenance to the tune of Rs. 400/- per month.

4. Aggrieved from this order dated 23.11.1995 passed by the Magistrate husband (Des Raj) has come up in revision to this Court.

5. I have heard the learned Counsel for the parties and have gone through the record. It has been submitted by the learned Counsel for the revision petitioner that the learned Magistrate has unjustifiably allowed maintenance to the wife when there is cogent evidence that the wife was living in adultery and she was caught red-handed in the act of sexual intercourse with her sister’s husband namely Ranjit Singh by Balwinder Kumar and Dharminder Singh who have stated that they saw Ranjit Singh in the company of his sister-in-law Meena Rani. They have not stated that he was seen by them in the act of sexual intercourse with her. They have not stated that they saw Ranjit Singh committing undesirable activities with Meena Rani. From the statements of Balwinder Kumar and Dharminder Singh, it cannot be said that Ranjit Singh was caught by them in the act of actual sexual intercourse. It is true that a wife is not entitled to be maintained by her husband if she is living in adultery. On mere oral evidence, the Court cannot label the wife as living in adultery.

6. If the wife was really living in adultery, the husband could institute complaint against her paramour under Section 497 of the Indian Penal Code. Husband could claim divorce on the ground that wife was living in adultery. Husband is bound to maintain his wife. Liability to maintain wife arises from the very existence of marriage. If the wife is not faithful to the marriage bed or if the wife without sufficient reasons refuses to co-habit with the husband, husband has remedy under the law to seek matrimonial relief against her. There is no evidence that the wife has the means to maintain herself by her own earnings or that she really earns. Husband is on the other hand stated to be running tailoring business. In these days, when the prices of essentials of life are going up almost daily, I do not think maintenance to the tune of Rs. 400/- per month is on the higher side. Wife has prayed for the grant of litigation expenses, so far as this Court is concerned. Litigation expenses to the tune of Rs. 1,000/- are awarded to the wife incurred by her in this Court.

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7. In consequence, this revision fails and is dismissed. What has been said above, that is only to dispose of the claim of the wife instituted by her under Section 125 of the Criminal Procedure Code. It will have no effect if the husband is to sue her for divorce on the ground of adultery etc.

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