1. The petitioner filed an application before the Judicial Magistrate First Class, Jajpur Road, claiming maintenance from the opposite party under S. 125, Criminal P.C (hereinafter referred to as the “Code”). Her application having been rejected by the learned Magistrate, the present revision has been preferred. The petitioner alleges that she is the legally married wife of the opposite party and marriage between them having taken place on 5-7-1979 according to the Hindu rites. The opposite party neglected her as the dowry demanded by him could not be satisfied and ultimately the opposite party drove away the petitioner from his house and refused to maintain her. It was alleged that the opposite party has married again the daughter of one Dwija Nayak and has sufficient means to maintain the petitioner. The petitioner claimed maintenance at the rate of Rs. 200/- per month.

2. The opposite party denies the allegations made in the petition and also avers that the petitioner is living in adultery and both of them are living separately by mutual consent. According to the opposite party, the petitioner was caught red-handed while she was having sexual relationship with one Natabar Beuria and thereafter she voluntarily left the house expressing her inability to stay with the opposite party and, therefore, she is not entitled to claim maintenance under S. 125 of the Code. Four witnesses were examined on behalf 61 the petitioner and four witnesses were examined on behalf of the opposite party while a number of documents were also exhibited by either party. On consideration of the evidence on record, the learned Magistrate came to the conclusion that the story of the petitioner that dowry was demanded after marriage appeared to be improbable. He also held that the petitioner had failed to establish the allegation that the opposite party had married for the second time the daughter of Dwijabar Nayak. The learned Magistrate accepted the case of the opposite party and held that the petitioner is living in adultery and further petitioner could not prove the negligence or refusal on the part of her husband to maintain her and ultimately rejected the petition invoking the jurisdiction under sub-s. (4) of S. 125 of the Code.

3. There is no dispute that the petitioner and the opposite party married each other as alleged in the petition itself. Mr. Palit, the learned counsel appearing for the petitioner, contends that the impugned order of the learned Magistrate read as a whole would indicate that what has weighed with the learned Magistrate is the finding that the wife is living in adultery disentitling her to receive any allowance from her husband within the ambit of sub-s. (4) of S. 125 of the Code and that conclusion cannot be sustained in view of the evidence on record as well as the law on the point. The learned counsel further urges that there are sufficient materials on record to come to the conclusion that the opposite party has neglected and refused to maintain his wife and has sufficient means to maintain the wife and, therefore, the petitioner is entitled to receive maintenance.

4. Mr. Jena, the learned counsel appearing for the opposite party, strenuously urges that this Court should not interfere with the finding of fact arrived at by the learned Magistrate in exercise of its revisional jurisdiction and further that the materials are sufficient to come to a conclusion that the wife is living in adultery disentitling her to claim any maintenance from the husband. In that view of the matter, the order of the Magistrate becomes unassailable.

5. It is too well settled that S. 125 of the Code has been enacted with the object of enabling discarded wives, helpless and deserted children and destitute parents to secure the much needed relief. A speedier remedy has been provided for against starvation by way of a summary procedure. The provisions, in fact, give effect to the fundamental and natural duty of a man to maintain his wife, children and parents when they are unable to maintain themselves. The pre-conditions for grant of maintenance are that the applicant must be the wife and unable to maintain herself and her husband having sufficient means neglects or refuses to maintain her. There is no dispute in the; present case that the petitioner is the legally married wife of the opposite party. The question which, therefore, crops up for consideration is whether the opposite party, husband, has neglected or refused to maintain the petitioner having sufficient means and whether the wife is unable to maintain herself. But before that it is more appropriate to discuss the applicability of sub-s. (4) of S. 125 of the Code to the facts and circumstances of the present case, since the Magistrate has refused the maintenance on the ground that the petitioner has incurred the disability contained in sub-s. (4). Sub-sec. (4) of S. 125 of the Code may be extracted hereunder:—

“No wife shall be entitled to receive an allowance 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.”

6. We are concerned in this case with the first part of sub-s. (4) since the Magistrate has rejected the petitioner's prayer on that ground.

7. The expression “if she is living in adultery” undoubtedly 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-s. (4). Therefore, a Magistrate has 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, Further, there must be clear proof of adultery. A suspicion nurtured by the husband will not disentitle the wife to receive the maintenance under the Code. It is true that direct evidence of adultery can seldom be given, but at the same time there must be some evidence to prove the allegations of adultery and a mere bazar gossip would not prove adultery. Since sub-s. (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. Within the aforesaid parameter, let me now examine whether the conclusion of the learned Magistrate in this regard can be sustained in law or not.

8. At this point of time, it would be profitable to note the objection of Mr. Jena, the learned counsel for the opposite party, that this being a revision, the Court has no jurisdiction to interfere with the conclusions based on evidence. Mr. Jena relies on the decision of this Court in the case of Ananta Bhottamisra… v. Smt. Saraswati Bhottamisra…Opp. Party., (1985) 59 Cut LT 11. In that case the Magistrate refused maintenance on the ground that the wife had been living in adultery. In revision, the learned Sessions Judge reversed the said finding since the Magistrate had not kept in view the proper perspective while appreciating the evidence. This Court upheld the conclusion of the revisional Court and observed:

“……The learned Additional Sessions Judge was not oblivious of the limited jurisdiction he had while sitting in a Court of revision and being conscious of the fact that normally a finding of fact is not to be interfered with by the revisional Court unless the finding is perverse and is not supported by legal evidence, he has carefully discussed the entire evidence adduced from the side of the petitioner to establish his case that the opposite party had been living in adultery. He has examined the evidence of the petitioner and the evidence of each of his witnesses examined in this regard and for the reasons recorded by him, which need note repeated, has come to find that the evidence left in this regard was not only vague, but also an unreliable and improbable and could not have been accepted by the learned Magistrate in support of the case of the petitioner. A plea of the type raised by the petitioner was to be, but had not been, established by clear and acceptable evidence and the vague evidence with regard to the company of the opposite party with some persons, without anything more, could not give an indication that she had been living in adultery………”

9. I am unable to find as to how this decision in any way supports the contention raised by Mr. Jena. The revisional Court in the said case has examined the entire evidence on record and altered the conclusion of the trying Magistrate and such conclusion was upheld by this Court. On the other hand, the aforesaid decision supports Mr. Palit's contention that where the Magistrate has not kept in view the correct position of law and has failed to appreciate the evidence in its true perspective, it would be within the jurisdiction of the revisional Court to appraise the evidence and come to a conclusion as to whether the conclusion of the trying Magistrate was justified or not. Where the conclusion of a Magistrate is grossly and palpably unjust or is based upon a manifestly erroneous approach and erroneous appraisal of the evidence, and further the Magistrate has misconceived the evidence and has come to an obviously wrong conclusion the revisional Court would be fully justified to go into the facts and correct the error that has cropped into the judgment of the trying Magistrate. In such a case, the revisional Court is not interfering on the ground of inadequacy of evidence, but on the ground that there has been a clear case of miscarriage of justice. In this view of the matter, I do not find any substance in the objection raised by Mr. Jena, the learned counsel for the opposite party.

10. Coming back to the conclusion of the Magistrate regarding the adultery committed by the petitioner, I find that to prove the allegation which, as has been stated earlier, is the duty of the husband, the husband has not been examined. Even his father has not been examined though it is alleged that on one particular occasion his father saw the petitioner having sexual relationship with one Natabar Beuria. Instead, some outsiders have been examined and some documents have been proved. The learned Magistrate has relied heavily on Exts. A and B and the statement of O.P.Ws 1 and 4 to come to the conclusion that the petitioner is living in adultery. O.P.W 1 has given a bald statement that petitioner and Natabar are living like husband and wife. Further Natabar is looking after the case. In the cross-examination, it has been elicited from the said witness that he has objected before the brother of the petitioner regarding the illicit relationship between petitioner and Natabar, but the said brother has not been examined. From that bald statement of O.P.W 1, it is difficult to come to the conclusion that the petitioner is living in adultery. No dates have been given by the said witness from which he could come to the conclusion that petitioner and Natabar are living as husband and wife. O.P.Ws 2 and 3 have testified as to the writing of Exts. B and C by the petitioner and said Natabar and according to them, they heard from Baidhar, father of opposite party, that Natabar on the previous night had illicit sexual connection with the petitioner. It is surprising and quite unnatural for a father-in-law to convey this conduct of his daughter-in-law before co-villagers and that too shortly after the marriage of the son. It is not known as to why said Baidhar has not been examined though it is stated that he has seen the occurrence. O.P.W 4 is the Samundi of Baidhar and he also deposed that he heard from Baidhar that Rachita (petitioner) was having illicit connection with Natabar. His evidence is also a hearsay one and does not prove the allegation of adultery, Thus, the oral evidence adduced by the opposite party is perfunctory and on that evidence no Court can come to a conclusion that the petitioner is living in adultery.

11. Coming back to the two documents on which the learned Magistrate has placed reliance, namely Exts. B and C, Ext. B is a document purported to have been written by the petitioner on 21-8-1979. Under this document the petitioner has indicated that she was leaving the house of the opposite party and would not claim any maintanance and, therefore, it is no evidence to prove that she is living in adultery. Ext. C appears to ‘have been written by Natabar on 21-84979 indicating that on account of some temporary insanity, he had sexual intercourse with Rachita, the petitioner, and admitted his guilt. This document would not be sufficient to come to the conclusion that the petitioner is living in adultery. Therefore, on the materials relied upon by the learned Magistrate, it is impossible to come to a conclusion that the opposite party has proved that the petitioner is living in adultery.

12. Mr. Jena, the learned counsel for the opposite party, then places reliance on Exts. E to H, which are supposed to be letters some written to the petitioner by Natabar and some written by the petitioner to Natabar. Having perused those letters, I am not in a position to come to the conclusion that those letters in any way prove a continuous adulterous conduct on the part of the petitioner. There is nothing in those letters which would indicate any act of adultery on the part of the petitioner. In this view of the matter, I am of the opinion that the conclusion of the learned Magistrate that the petitioner is living in adultery cannot be sustained and the said conclusion is accordingly set aside.

13. The next question which requires to be answered is whether the ingredients of S. 125 of the Code entitling the petitioner to receive maintenance have been proved or not, or in other words, whether the petitioner has been able to prove that her husband has neglected and refused to maintain her. P.W 1, the petitioner herself, has alleged that her husband demanded the balance dowry amount of Rs. 5,000/- which her brother refused to pay and since then the opposite party began ill-treating her. No clothings were given to her and her husband threatened to assault her and in fact assaulted her. Several instances of assault have been deposed to by her and ultimately she left her husband's house being tortured. She has asserted that she has no means to maintain herself and her husband has about eight acres of landed property and lives a comfortable life. She has, of course, stated in her evidence that Exts. A and B were written by her out of coercion. P.W 2 is Natabar who is a Sarpanch and he corroborates the evidence of P.W 1 regarding the dowry demand made by the opposite party and further stated that the petitioner left her husband's house in October, 1979 and thereafter she was not being maintained by her husband. P.W 3 is the family priest of the petitioner. He proves the marriage between the petitioner and the opposite party which is, of course, not denied in this case. P.W 4 is the village barber who also proves the marriage between the petitioner and the opposite party. There is no reason to discard the evidence of P.Ws 1 and 2 which would establish that the opposite party has neglected and refused to maintain the petitioner who is his legally married wife and, therefore, the petitioner would be entitled to receive maintenance.

14. Coming to the quantum of maintenance, true it is, there is not much of evidence adduced by the petitioner excepting stating that the husband has eight acres of land and he lives happily from the income of the said land. The husband has not examined himself to controvert the said statement.

15. Taking into consideration the annual yield from eight acres of land, and also taking into consideration the present cost of living, in the facts and circumstances of the present case, I hold that the petitioner should get a monthly maintenance of Rs. 75/- from the opposite party and this maintenance she is entitled to from the date of her application filed under S. 125 of the Code.

16. In the ultimate result, therefore, the order of the Magistrate is set aside and it is directed that the petitioner is entitled to maintenance at the rate of Rs. 75/- (Seventy five) per month from the opposite party with effect from the date of her application filed under S. 125 of the Code before the Magistrate. The Criminal Revision is accordingly allowed.

17. Revision allowed.