Criminal Revision No. 513 of 1991

3rd July, 1992.

Petitioner Counsel: S. K. Ray, for Opposite party.

Cases Cited:
(1990) 69 Cut LT 259 [Para 8]
1990 Cri LJ (NOC) 59,1989 (2) Crimes 288 (Foll) [Para 8]
1987 Cri LJ 655 [Para 8]
(1986) 62 Cut LJ 92 [Para 8]
AIR 1982 SC 853,1982 All LJ 360 [Para 8]
(1966) 32 Cut LT 827 [Para 8]
1954 Cri LJ 516,AIR 1954 Mad 427 [Para 8]

JUDGMENT

ORDER :-In this revision petition the petitioner assails the revisional order dated 29-7-91 of the Addl. Sessions Judge, Jajpur in Criminal Revision No. 150 of 1989 requiring him to pay to the opposite party maintenance at the rate of Rs. 200/- per month with effect from 30-3-88 the date of presentation of the petition under S. 125, Cr. P.C. By the said order the Addl. Sessions Judge set aside the order dated 19th July, 1989 of the Sub-divisional Judicial Magistrate, Jajpur in Misc. Case No. 41 of 1988 rejecting the application for maintenance.

2. The relevant facts, shorn of unnecessary details, may be stated thus :

The petitioner Baishnab Charan Jena married the opposite party Ritarani Jena in 1980 according to Hindu rites and customs. They lived as husband and wife till they parted company sometime in 1985. The opposite party filed the application under S. 125, Cr. P.C. claiming maintenance at the rate of Rs. 300/- per month in March, 1988. Therein she alleged that differences had developed between her parents and the family of the petitioner due to non-fulfilment of dowry demand by the former. On account of that the petitioner ill-treated and assaulted her and denied her basic needs of life like food and clothing and finally sent her to her father's house. Thereafter on the intervention of some gentlemen of the village the petitioner agreed that the opposite party will live separately and that he will pay Rs. 150/- per month for her maintenance. He executed a document to this effect in March, 1986. For two to three months he paid the stipulated amount and thereafter discontinued payment. On enquiry the opposite party learnt that the petitioner has married again. The opposite party alleged that under such compelling circumstances she has been living with her father who is a rickshaw puller. According to her the petitioner earns about Rs. 1200/- per month, Rs. 900/- towards salary as a peon in Narasingha Choudhury College at Jajpur and about Rs. 300/- from agricultural land and other sources. On these allegations she prayed for maintenance at the rate of Rs. 300/- per month.

3. The petitioner in his objection to the application for maintenance denied the allegations made by the opposite party. While admitting the marriage he denied that there was any rift between the two families on account of dowry demand and that he had ill-treated and assaulted the opposite party on that account. He alleged that the opposite party was a girl of questionable character. She

had extra marital relationship with one Babuli Jena, a resident of the same village and her brother-in-law Laxmidhar Jena. In 1985 one night at about 12 p.m. during the absence of the petitioner the opposite party and Babuli Jena had been seen together in a room by father and brother of the petitioner. On being questioned by them the opposite party and Babuli Jena had admitted their extramarital relationship. Thereafter the opposite party insisted that the petitioner should send her to her father's house and even threatened that if her request was not acceded to she will commit suicide. In such circumstances the petitioner had to leave the opposite party at her father's house. He subsequently learnt that the opposite party lived with Babuli Jena for about six months and thereafter left him. The opposite party is leading an adulterous life in her father's house. The petitioner denied to have agreed to pay Rs. 150/- per month to the opposite party. It is his case that he was compelled under threat and coercion to execute the document dated 3-4-86. The document is not binding on him. It was further stated in the objection that the petitioner was not in a position to pay any amount towards maintenance to the opposite party since his income is inadequate to maintain the large family including his old parents.

4. Both parties led oral evidence, in support of their respective cases. From each side four witnesses including the party concerned were examined.

5. The learned Magistrate on sifting the evidence on record held that the opposite party had failed to prove her allegations of dowry demand, assault and forcibly driving her out from the house; that the agreement (Ext. 1) was not binding on the petitioner : that the opposite party had also failed to establish her allegation of second marriage by the petitioner and that the opposite party was living in adultery during the subsistence of her marriage with the petitioner and had continued it which resulted in her marriage with her paramour Babuli Jena. The learned Magistrate concluded that the opposite party is a lady of shady and shabby character and the petitioner is not bound to maintain her although he is a man of means. He therefore rejected the application for maintenance.

6. The said order was challenged by the opposite party in revision before the Addl. Sessions Judge, Jajpur. The revisional court on a fresh look at the materials on record did not accept the pleas taken by the petitioner. He took the view that the wild imputations of adultery and unchastity made by the husband against his wife have not been proved; therefore the latter had reason and justification to live separately from her husband notwithstanding his offer to take her back.

7. The main thrust of the argument of Shri S. K. Sahu, learned counsel for the petitioner is that the revisional court erred in setting aside the decision of the trial court without proper consideration of the materials on record. In other words, his contention is that since it is clear from the evidence and it was so held by the learned Magistrate that the wife had failed to establish her case of assault, torture, driving out from the marital home and refusal to accept her in the house or pay maintenance to her, therefore the revisional court ought not to have interfered with the decision of the trial court.

On the other hand Sri S. K. Ray appearing for the opposite party contended that the learned Addl. Sessions Judge was fully justified in setting aside the decision of the learned S.D.J.M. and the view taken by him being legal and valid warrants no interference.

8. Before considering the merits of the case it will be helpful to notice a few decisions which lay down certain principles relevant for appreciating the present case.

This Court in the case of Anjali Behera v. Lingaraj Behera, reported in (1990) 69 CLT 259 considering the question whether the wife was justified in turning down the offer made by her husband during the course of the enquiry to take her back to his house observed that unless the wife could reasonably hope to live with decency and dignity under the roof of her husband, she is justified in refusing to accede to the offer of the husband to receive her back. This Court relied on the decision of

the Apex Court in the case of Smt. Khatoon v. Mohd. Yamin, reported in AIR 1982 SC 853 (1982 All LJ 360) wherein the Court upheld the right of the wife for maintenance notwithstanding her refusal to live with her husband because he wrote a letter to her asking her to come back to him otherwise she would be treated as divorced. The Apex Court held that such an unreasonable threat constitutes sufficient reason for the wife to refuse to live with her husband.

In the case of Smt. Pramila Dei alias Kuni v. Sanatana Jena, reported in 1989 (2) Crimes 288 : (1990 Cri LJ (NOC) 59 this Court took the view that if the allegation of unchastity is made by the husband against the wife and payment of maintenance is sought to be avoided on the ground of her living in adultery but the plea fails, such plea by itself is sufficient to entitle the wife to claim maintenance under S. 125, Cr. P.C. It was observed therein that such allegation by the husband against the wife which causes mental anguish of the deepest character, and is a grave psychic assault on her, shatters the marital peace and makes living together incompatible.

In the case of Smt. Rachita Rout v. Basanta Kumar Rout, reported in 1987 Cr. LJ 655 this Court interpreting the words "living in adultery" in Section 125(4) Cr. P.C. held that the expression undoubtedly connotes a course of adulterous conduct more or less continuous; and occasional lapse would not be sufficient reason for refusing maintenance within the ambit of Sub-Sec. (4). Therefore the Magistrate has to probe and find out whether at or about the time of application, there has been adulterous conduct on the part of the wife. Further, there must be clear proof of the adultery. A suspicion nurtured by the husband will not disentitle the wife to receive maintenance under the Code. This Court further held that since Sub-Sec. (4) is in the nature of an exception to the main Section, it is for the husband claiming protection under the said provision to show that the said Sub-Section is applicable, that is to say the husband must establish that the wife is living in adultery.

In the case of Saraswati Meher v. Jadumani Meher, reported in (1986) 62 CLT 92 this Court interpreting S. 125(1) and (4) Cr. P.C. held that the right of a wife for maintenance is an incidence of the status or estate of matrimony. According to the text of Hindu Law to which the parties belong, the obligation to maintain the wife arises from the very existence of the relationship between the parties. Apart from the liability which the husband incurs under the personal law of maintaining his wife, the provisions of S. 125, Cr. P.C. are independent of personal law or any custom governing the parties. The right to be maintained under the Section is a distinct statutory right which has been recognised as a part of the law irrespective of the nationality or the creed of the parties. The only condition precedent for application of the Section is the existence of the relationship of the petitioner with the opposite party as his wife. All that is said in Sub-Sec. (4) of S. 125 Cr. P.C. is that a wife shall not be entitled to live separately from her husband without any justifying cause and claim maintenance from her husband. The justifying cause need not always be confined to ill-treatment or cruelty on the part of the husband. This Court further held that in fit cases it is permissible for a court to rely even on the uncorroborated testimony of the wife to grant her maintenance under S. 125, Cr. P.C. provided her evidence is truthful and believable.

In the case of Madan Mohan Rai v. Sm. Niladri Dei reported in (1966) 32 CLT 827 this Court interpreting the expression "living in adultery" in Section 488(4) Cr. P.C. held that the expression does not connote either a single act of adultery or even several such isolated acts. It means the following of a course of continuous adulterous conduct. The principle is that occasional lapses from virtue are not a sufficient reason for refusing maintenance. The husband is absolved from the obligation to maintain his wife when she has a de facto protector, i.e. with whom she lives and by whom she is maintained as if she were his wife. Therein this Court further observed that the obligation of a husband to maintain his wife arose from the anxiety of the legislature to protect deserted wives from the

bitter necessity of earning and living by trading on their sex. That obligation however ceases when it has been voluntarily assumed by some men other than the woman's husband. No woman can fairly claim a right to be kept by two men. The approach to S. 488 is relieving of destitution. In taking this view this Court followed the decision of the Madras High Court in the case of M. Kanniappan v. Akilandammal, reported in AIR 1954 Madras 427 : (1954 Cri LJ 516).

9. I shall next consider the correctness of the findings of the learned Addl. Sessions Judge in the light of the principles laid down in the aforementioned decided cases. From the facts of the case stated earlier, it is clear that right from the inception of the proceeding while admitting that the opposite party is his wife the petitioner had tried to avoid his liability to pay maintenance to her mainly on the ground that she was leading an adulterous life while living in his house and continued to lead such life after she had left his house. In support of the plea he relied on the alleged incident in which during the night Babuli Jena was seen in the bed room of the opposite party and that the opposite party after parting company with the petitioner had lived with Babuli Jena for a certain period. The petitioner had also alleged that the opposite party had an extra-marital affair with her brother-in-law, Laxmidhar Jena. On sifting the evidence led on behalf of the petitioner the learned Addl. Sessions Judge held, in my view, rightly, that the materials do not establish that the opposite party was leading an adulterous life at the material point of time.As held in the case of Smt. Rachita Rout (Supra) merely proving one or more instances of lapses in the character of the wife is not sufficient to absolve the husband from his liability to pay maintenance to her. Therefore even assuming that the instances alleged by the petitioner are held to have been established still he will not be entitled to succeed to deny his liability for payment of maintenance. The entitlement of the opposite party to maintenance which flows from the marital relationship, which is admitted in this case. subsists. Further, as held in the case of Smt. Pramila Dei alias Kuni (supra) the unsuccessful bid by the husband to castigate the wife as a person living in adultery entitles her in live separately from her husband and claim maintenance from him.

10. Coming to the plea of the petitioner that notwithstanding the lapses on the part of the opposite party he had offered to take her back to his house but she refused the offer, it has to be held that on the fact and in the circumstances of the case she was fully justified in refusing the offer. It is clear from the evidence on record that in the proceeding serious allegations of extra-marital relationship with persons other than her husband were made against the opposite party. Indeed it was the case of the petitioner that when she and Babuli Jena were found in the same room during the night the opposite party insisted to be sent to her father's place. Such conduct in the situation has also to be held to be justified. The opposite party was entitled to lead a life of peace and harmony without insult and humiliation. The very allegation by the husband and members of his family that the opposite party is having extra-marital relationship with a person other than her husband is insulting and humiliating enough and in such situation if the wife refuses to remain in her house, she cannot be said to have forfeited her right to maintenance.

11. Shri S. K. Sahoo, learned counsel for the petitioner contended that the learned Addl. Sessions Judge has ignored certain relevant evidence while coming to the findings in the impugned order. Though it is not the practice of this Court to sift the evidence in a revisional proceeding, in order to satisfy myself about the correctness of the contention raised by Shri Sahoo, I have perused the depositions of the P.Ws. and O.P. Ws. copies of which were supplied by the learned counsel. I am not satisfied that any relevant evidence has been ignored by the learned Addl. Sessions Judge on account of which the findings recorded by him can be said to have been vitiated or it can be held that there has been failure of justice on that count.

12. In the result the revision petition fails and it is dismissed.

Petition Dismissed