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Ali Mohammed v. Smt Zaida(36)
Judgment Summary — G.K. Sharma, J.
Factual and Procedural Background
Ali Mohammed filed a petition under section 482 Cr.P.C. challenging the judgment dated 12.2.1986 of the Additional Sessions Judge No. 2, Udaipur, which had dismissed his revision petition. The revision had been preferred against an order of the Munsif and Judicial Magistrate, Kherwada, disposing of an application under section 125 Cr.P.C. filed by Smt. Zaida.
Zaida's application under section 125 alleged that she was married to Ali Mohammed for about ten years, had three children by the marriage, and that Ali Mohammed had begun quarrelling with and beating her about one year after marriage. She alleged he had married another woman and sought maintenance. Ali Mohammed admitted the marriage and a subsequent marriage to another woman but denied most allegations; he pleaded that Zaida had an immoral character and was living in adultery, stating she was once found in the room of Maulana Akbar Ali in the presence of many persons and that he had divorced her.
The trial court framed four issues, of which issue No. 1 related to whether Zaida was living in adultery and issue No. 3 related to entitlement to maintenance. The trial court found there had been bodily/physical relations between Zaida and Maulana Akbar Ali but held that this was a solitary instance and did not establish that Zaida was "living in adultery"; nevertheless, the court awarded maintenance of Rs. 150 per month to Zaida effective from 29.4.1980. The Additional Sessions Judge confirmed the trial court's order by the judgment dated 12.2.1986. Ali Mohammed accordingly filed the present petition under section 482 Cr.P.C.
Legal Issues Presented
- Whether the non-petitioner (Smt. Zaida) is "living in adultery" within the meaning of section 125(4) Cr.P.C., thereby disentitling her from maintenance.
- Whether the maintenance award of Rs. 150 per month was justified as to quantum, given the petitioner's asserted earning capacity and financial position.
- Whether the maintenance should be made payable with retrospective effect from the date of the section 125 Cr.P.C. application (29.4.1980).
- Whether the Muslim Women (Protection of Rights on Divorce) Act, 1986 (and specifically section 7) barred the non-petitioner from claiming maintenance in the circumstances of this case.
Arguments of the Parties
Petitioner's Arguments (Ali Mohammed — Mr. Kala, counsel)
- Section 125(4) Cr.P.C. bars maintenance where the wife is "living in adultery"; the petitioner contended he had proved that Zaida had illicit relations with Maulana Akbar Ali and that Maulana admitted prior visits by Zaida, so the evidence showed more than a solitary instance.
- He relied on authority (Gokul Prakash Gure v. Dhanbhai (1982 DMC 66)) to argue that even a solitary instance can be sufficient to establish adultery in certain matrimonial contexts.
- He argued that the maintenance of Rs. 150 per month was excessive relative to the petitioner's income; the petitioner ran a small "parchuni" shop and had not been afforded relief from retrospective liability.
- He contended that after the Muslim Women (Protection of Rights on Divorce) Act, 1986, a divorced Muslim woman is not entitled to maintenance under section 125 Cr.P.C., and therefore the non-petitioner should be barred from relief.
- He requested that, alternatively, arrears (the retrospective amount) be allowed to be paid in installments because the petitioner could not pay a lump sum.
Respondent's Arguments (Smt. Zaida — represented by Shri Mridul Jain as appearing)
- The phrase "living in adultery" in section 125(4) Cr.P.C. denotes a course of continuous adulterous conduct rather than a single act or isolated acts; thus the petitioner needed to prove continued adulterous conduct, not merely a solitary incident.
- He relied on authorities (including Kista Pillai v. Amrithamba AIR 1938 Madras 833 and AIR 1928 Bombay 59) to support the proposition that occasional lapses are not sufficient to deny maintenance and that "living in adultery" requires continued conduct.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Gokul Prakash Gure v. Dhanbhai, (1982 DMC 66) | Cited to support that, in matrimonial proceedings, direct proof of adultery is rare and that adultery may be established by circumstances; on facts of that case a finding of adultery was reached (even on limited instances). | Relied on by petitioner to argue a solitary instance may suffice. The court considered the case but distinguished it from the present facts and did not accept that the present evidence amounted to proof of "living in adultery". |
| Kista Pillai v. Amrithamba, AIR 1938 Madras 833 | Held that "living in adultery" connotes a course of continuous adulterous conduct and not a single act. | Invoked by respondent's counsel to emphasize that isolated acts do not disentitle a wife to maintenance; the court accepted the principle that continued conduct is required and applied it in concluding the evidence here was insufficient. |
| AIR 1928 Bombay 59 (Bombay High Court) | Used in earlier authority to support that occasional lapses are not sufficient to refuse maintenance; cited for the meaning of "living in adultery". | Referenced (through Kista Pillai) to support the interpretation that "living in adultery" implies continuity; the court treated this principle as part of the authorities weighing against treating a solitary instance as sufficient. |
| M.P. Subramaniam v. T.T. Ponakshiammal, AIR 1958 Mysore 41 | Observed that a stray act or two do not disentitle a wife; "living in adultery" requires a course of continuous conduct. | Cited to reinforce the requirement of continued conduct; the court relied on this line of authority in upholding the trial court's view that a solitary instance did not establish "living in adultery". |
| Mst. Durghatia v. Ayodhya Prasad, 1953 Cr. L.J. 1214 | Defined "living in adultery" as proof of a course of conduct over some period; between single lapse and life as a common prostitute there are gradations, and the question is one of fact. | Quoted to explain the factual approach required; the court used this definition to support its conclusion that the evidence did not demonstrate the requisite course of conduct. |
| (6) AIR 1966 Madras 833 | Referenced (as cited in later cases) in relation to the meaning of "living in adultery". | Mentioned as part of the chain of authorities; the court considered the line of cases and incorporated their principles in assessing whether the evidence showed continued adulterous conduct. |
| T. Mercy v. V.M. Varughtse, AIR 1966 Kerala 569 | Held that "living in adultery" is distinct from merely leading an unchaste life; evidence of friendliness alone does not establish the bar to maintenance. | Used to illustrate that casual or friendly association does not automatically disentitle a wife to maintenance; the court cited the principle and found it relevant to decline to treat the incident here as establishing "living in adultery". |
| Pulikkottial Cheru v. Mary Zeehariah, AIR 1981 M.P. 12 | Discussed proof standards in matrimonial/adultery cases (noting that even on civil standard a high standard is often required); in that case divorce was granted on sufficient evidence of adultery. | Cited by petitioner but the court distinguished that case on facts, noting that the evidence in Pulikkottial showed a broader pattern not present here; thus it did not assist the petitioner in overturning the orders below. |
| B.D. Charles v. Smt. Nora Benjamin, AIR 1979 Raj. 156 (Full Bench) | Held that adultery is often proved by inference from the totality of circumstances; (i) direct proof is rare; (ii) circumstantial evidence can establish adultery; (iii) circumstances must lead a reasonable mind to that conclusion. | The court acknowledged these principles (that adultery can be proved circumstantially) but concluded that on the facts before it the circumstances did not satisfy the test so as to establish that Zaida was "living in adultery". |
| Mohanlal v. Mst. Pushpa, (1979) Vol. V Rajasthan Criminal Cases 73 | Held that a court should consider the earning capacity of the husband when fixing maintenance; awards may be adjusted where an arbitrary amount is fixed without regard to earning capacity. | The court referred to this authority in considering the petitioner's contention on quantum; noting that the petitioner failed to prove his income, the court held Rs. 150 p.m. could not be said to be excessive on the record and applied the principle to uphold the award. |
Court's Reasoning and Analysis
The court began by identifying the principal factual finding of the trial court: evidence established that Zaida had a bodily/physical relation with Maulana Akbar Ali and had been found in his room on one night. However, the trial court characterized that instance as solitary and held it did not prove that Zaida was "living in adultery." The Additional Sessions Judge upheld that conclusion, and the petitioner challenged the confirmation by way of a petition under section 482 Cr.P.C.
The court examined the competing legal propositions. It accepted the general propositions drawn from the authorities that:
- Direct proof of adultery is rare and courts frequently infer adultery from the totality of circumstances.
- Adultery can be established by circumstantial evidence, but the circumstances must be such as to lead a reasonable and just conclusion of adultery.
- The expression "living in adultery" has been interpreted in several decisions to mean a course of continuous adulterous conduct rather than a single act or isolated acts.
Applying these principles to the present record, the court reviewed the evidence relied on by the petitioner: witnesses who saw Zaida in Maulana's room on one night and testimony that Maulana admitted she had previously visited him two or three times. The court found that such proof amounted at best to isolated visits and admissions of prior visits rather than a sustained pattern of adulterous living. The court specifically stated that the petitioner had not established that Zaida was habitually visiting Maulana's house or leading an adulterous life.
While the court recognized that circumstantial evidence can ground a finding of adultery, it held that the available circumstances did not permit drawing that inference here. Consequently, the trial court's finding—that the incident was solitary and insufficient to amount to "living in adultery"—was accepted and found to require no interference.
On the question of maintenance quantum, the court noted that the petitioner bore the burden to prove his financial position. The trial court record did not satisfactorily establish the petitioner's exact income; therefore the court upheld the maintenance award of Rs. 150 per month as not excessive on the given record. The court also held there was no illegality in awarding maintenance from the date of the application (29.4.1980).
Regarding the contention based on the Muslim Women (Protection of Rights on Divorce) Act, 1986, the court examined section 7 and observed that the section applies to applications pending before a Magistrate on the commencement of the Act. In the present case the section 125 Cr.P.C. application had already been disposed of by the Magistrate before the commencement of that Act and only the revision petition was pending. Therefore the Act did not bar the claim in this procedural posture.
Finally, the court rejected the petitioner's request to pay any retrospective amount in instalments: it characterized the request as a means to avoid payment, noting that the petitioner had earlier claimed inability even to pay Rs. 150 per month and had not proved his income to justify relief.
Holding and Implications
Core Ruling: The petition under section 482 Cr.P.C. is dismissed. The court upheld the findings of the trial court and the Additional Sessions Judge that the evidence did not prove that the non-petitioner (Smt. Zaida) was "living in adultery" and that the maintenance award of Rs. 150 per month (effective from 29.4.1980) stands.
Implications and immediate consequences:
- The orders of the trial court and the Additional Sessions Judge confirming maintenance of Rs. 150 per month remain in force; the petitioner's challenge to those orders under section 482 failed.
- The petitioner was not permitted to pay the retrospective amount by instalments; the request for instalments was disallowed.
- The court held that the Muslim Women (Protection of Rights on Divorce) Act, 1986 did not operate to bar the non-petitioner's claim in the factual and procedural circumstances of this case.
- No wider or novel precedent was announced by this decision beyond the application of existing principles: the court applied established authorities on the meaning of "living in adultery," the standards for proving adultery, and considerations in fixing maintenance where the earning capacity of the husband is not proved.
Disposition recorded in the opinion: the main miscellaneous petition under section 482 Cr.P.C. is dismissed and the orders below are left undisturbed.
The Judgment of the Court was delivered by
G.K Sharma, J.:— The main miscellaneous petition under section 482 Cr. P.C is hereby disposed of.
2. Ali Mohammed filed the present petition under section 482 Cr. P.C against the judgment dated 12.2.1986 passed by the Additional Sessions Judge No. 2, Udaipur by which he dismissed the revision petition of the petitioner.
3. Smt. Zaida filed an application under section 125 Cr. P.C in the court of Munsif and Judicial Magistrate Kherwada. She alleged that she was married with Ali Mohammed some 10 years before and had three children from this marriage. Ali Mohammed one year after the marriage started quarrelling with her, used to beat her and he wanted to turn her out from the house on making false allegations against her. He has also married another woman, so she claimed maintenance allowance. Ali Mohammed contested this application. He admitted that he was married with Zaida but denied all other allegations. He has also admitted his marriage to another woman. He had taken a plea that the character of the petitioner Zaida is not good and she is living adulterous life. She was found in the room of Maulana Akbar Ali on one night in presenee of so many persons and he had divorced her.
4. The trial court framed four issues. The first issue was with regard to leading adulterous life. The third issue was with regard to maintenance allowance.
5. The first issue is the only material issue in this case. The allegation of Ali Mohammed the petitioner is that Smt. Zaida is leading an adulterous life and she was caught in the room of Maulana. Number of persons were called there and she was found there. On this issue both the parties have led evidence and after discussing the evidence the learned trial court has come to this conclusion that Mst. Zaida had bodily and physical relation with Maulana Akbar Ali. Inspite of this finding the trial court was of this opinion that this is a solitary instance which does not prove that Mst. Zaida is leading an adulterous life. Hence he decided issue No 1 against Ali Mohammed. On issue No. 3 after considering the statement of both the parties the trial court fixed Rs. 150/- per month as maintenance allowance and granted this allowance from 29.4.1980
6. Ali Mohammed felt aggrieved with this order of the trial court preferred an appeal in the Sessions Courc which was disposed of by Addl. Sessions Judge No. 2, Udaipur vide order dated 12.2.1986 The learned Additional Sessions Judge did not agree with the contentions of Ali Mohammed and ultimately rejected the revision petition and confirmed the order of the trial court.
7. Ali Mohammed has now preferred this petition under section 482 Cr. PC.
8. Mr. Kala, learned counsel for the petitioner has argued that section 125 clause (4) Cr P.C is the relevant clause for deciding this petition. Section 125 is with regard to order for maintenance to wife and children. Sub-section (4) of this section says that no wife shall be entitled tb receive allowance from her husband under this section if she is living in adultery. Pointing out the relevant words'living in adultery” it was argued that Ali Mohammed has proved by his evidence that Smt. Zaida had relation with Maulana Akbar Ali. It is also proved from the statement of witnesses that Maulana Akbar Ali admitted before them that Mst. Zaida used to come to him. While referring the statements and the portion of the order of the trial court where he had discussed the entire evidence it is clear that not only the day when Smt. Zaida was caught at the room of Maulana but Maulana had admitted that previously also she used to come. Thus this is not a solitary instance but from the statements of the witnesses it is clear that Smt. Zaida was habitual in coming to Maulana's house & both have physical relation with each other It was also argued that even on a solitary instance it was held that the wife is living in adultery. To support his contention he has cited (I) Gokul Prakash Gure v. Dhanbhai, (2) 1982 DMC 66. This was a case under Hindu Marriage Act where dissolution of marriage was prayed on the ground of committing adultery by the wife. Under section 13 (I) one has to prove for getting a decree for dissolution of the marriage that after solemnisation of the marriage she had voluntary sexual intercourse with any person other than her spouse, in this case it has been observed that direct evidence of adultery is rarely possible, therefore, always be viewed with suspicion. Adultery can be proved only by circumstances after discussing the evidence of the witnesses. It was further observed that the lady lived with the man as a married couple. The witnesses have seen her living together with another person So on t;he basis of this evidence the court has found that the lady had committed adultery.’ So by citing this case it was argued that even a solitary instance can be sufficient to come to the conclusion that the lady is living in adultery.
9. Shri Mridul Jain pointed out that the words ‘living in adultery’ have been mentioned in sub-section (4) and these words are very relevant. According to him this section does not speak of an act of adultery but living in adultery. The expression ‘living in adultery’ therefore connotes neither a single act of adultery nor even isolated acts but means the following of a course of continuous adulterous conduct. The argument is that Ali Mohammed had to prove that Mst. Zaida was leading an adulterous life. A single act of adultery is not suffi cient to prove her adulterous conduct. In case of (2) Kista Pillai v. Amrithamba, AIR 1938 Madras 833, the wife has claimed maintenance u/s 488 Cr. P.C In that case while relying on a case of Bombay High Court (3) AIR 1928 Bombay 59 it was observed that the words ‘living in adultery’ are merely indicative of the principle that occasionally lapses from virtue are not a sufficient reason for refusing maintenance. Continued adulterous conduct is what is meant by living in adultery.
10. In case of (4) M.P Subramaniam v. T.T Ponakshiammal, AIR 1958 Mysore 41, while observing regarding living in adultery it has been observed that it is not a stray act or two of adultery that disentitles a wife from claiming maintenance from her husband but it is a course of continuous conduct on her part by which it can be called that she is living an adulterous life that takes away her right to claim the said maintenance.
11. In the case of (5) Mst Durghatia v. Ayodhya Prasad, 1953 Cr. L.J 1214, while denying (sic defining) the words “living in adultery” it has been observed as under:—
“The plaintiff who alleges that the defendant ‘lives in adultery’ is to prove a course of conduct over some period 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 repetition and the brazeness of the conduct the signs of remorse and readiness to turn back, but it certainly begins at a stage below the first lapse.
Even supposing a child has been conceived in adultery, but itself it is insufficient to hold that she ‘lives in adultery.”
(6) AIR 1966 Madras 833 was later on relied by Kerala High Court in
(7) T. Mercy v. V.M Varughtse, AIR 1966 Kerala 569, and after discussing it was observed as under:—
“It is clear from the above judicial pronouncements that ‘living in adultery’ means something different from leading an unchaste life. In the present case even if the alleged letters are believed and that the first petitioner had been moving friendly with Appukuttan Nair, she does not become disentitled to maintenance, because the bar of ‘living in adultery’ is not established thereby. The learned Magistrate therefore has clearly erred in having refused maintenance to the wife.”
12. Mr. Kala also cited the case of (8) Pulikkottial Cheru v. Mary Zeehariah, AIR 1981 M.P 12 In this case after discussing the law regarding divorce and matrimonial matters it was observed that the change in principle as to the standard of proof will most often not make any difference in the result, for even applying the civil standard of proof to divorce proceedings based on adultery a high standard of proof will be needed to satisfy the court that adultery has been committed. Agreeing with this principle in that case the court believing the contention of the husband granted a decree of divorce. In this case the parties were Christians and according to Indian Christian Marriage Act the divorce petition was submitted. The ground for divorce was that the wife had committed adultery with the respondent No. 2 and the decree was passed. After going through this judgment it is clear that there was sufficient evidence to show or prove that the wife had earlier eloped with some other gentleman. There was also evidence that the respondent No. 2 who gained confidence of the petitioner husband used to visit the house in the absence. There was also evidence that the respondents were even roaming together although respondent No. 1.the wfie was not supposed to go with respondent No. 2. Then there was evidence of one Fateh Mohammed a milk seller who had stated that he had seen both the respondents sleeping on one cot. So all the evidence proved that the wife had committed adultery and the divorce decree was granted and the marriage dissolved. This case is distinguishable with the present case. Here the evidence is that Mst. Zaida was found in the room of Maulana Akbar Ali. There is no evidence to prove that previously also she was found at the house of Maulana. The only evidence is, as stated by witnesses, Maulana told them that prior to this also Zaida had visited hire twice or thrice. This evidence is not sufficient to proveithat Mst. Zaida is leading adulterous life. The evidence has been discussed by the trial court and he has agreed that Mst. Zaida was found at the house of Maulana Akbar Ali and she had illicit relation with him. It being a solitary instance the trial court held that she is not living in adultery. This order has been confirmed by the Additional Sessions Judge.
13. Mr. Kala has also cited the case of (9) B.D Charles v. Smt. Nora Benjamin, AIR 1979 Raj. 156 It is a Full Bench decision of this Court. In this case it has been observed that association coupled with opportunity, illicit affection, undue familiarity, guilty attachment are some of the instances which create an inference upon which the court can act. The fact of adultery has therefore to be inferred from the tota'ity of circumstance that lead to it by fair inference and as a necessary conclusion. It was also observed that following principles emerged from the aforesaid decision : (i) direct proof of adultery is very rare; (ii) adultery can be established by circumstantial evidence and (iii) circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion of adultery.
14. Keeping these principles and discussing the evidence and the circumstances of the case the appeal filed by the adulterer was allowed.
15. This case does not help the petitioner. In a case of adultery it is difficult to have direct proof and the adultery can be proved or established by circumstantial evidence This principle cannot be denied whether the petitioner by circumstances established that Mst. Zaida is leading adulterous life, the argument that the witnesses have seen her coming from the house of Maulana Akbar Ali and the witnesses have stated that they had seen her going to the house of Maulana, this evi ience is sufficient and the circumstances to prove that she was living in adultery. I do not agree with this submission. Whatever evidence has been adduced by the petitioner is not sufficient to establish that Mst Zaida has been leading an adulterous life. The learned trial court has correctly held that this is the solitary instance which cannot be taken as a proof for leading an adulterous life. The conclusion arrived at by the trial court and confirmed by the Additional Sessions Judge needs no interference.
16. Shri Kala learned counsel for the petitioner argued about the grant of maintenance allowance and submits that there is no iproof about the income of the petitioner and Rs. 150/- p.m has been granted which is excess to the income of the petitioner. From the judgment of the trial court it seems that the petitioner has failed to prove what is his exact income. He is running some ‘parchuni’ shop and according to him his income is not such that he could pay Rs. 150/- p.m to the non-petitioner. The burden was on the petitioned to prove his financial position to pay the maintenance to his wife & the petitioner has failed to prove his income. The trial court has granted Rs. 150/- per month to non-petitioner. According to the petitioner one child is living with the non-petitioner while according to the non-petitioner two children are living with her. Though there is no definite evidence with regard to this fact but in these days a sum of Rs. 150/- per month cannot be said to be an excess amount granted to the non-petitioner for her maintenance. Therefore, the argument about quantum of maintenance has no substance.
17. It was also argued that the trial court granted this maintenance from 29.4.1980 i.e the date when the application u/s 125 Cr.P.C was submitted. The petitioner was directed to pay a huge amount & as his financial position is weak he is not in a position to pay the amount in lumpsum. In the alternate it was prayed that he may be permitted to pay this amount in installments. This argument also has no substance. On one hand the petitioner says that he is not in a position to pay even Rs. 150/- per month, how would he be able to pay the installment of the maintenance amount awarded to non-petitioner in installment apart from the monthly maintenance fixed by the court. This is nothing but simply a way to avoid the payment. There is no illegality committed by the lower courts in granting the maintenance allowance from the date of her application. In this respect the case of (10) Mohanlal v. Mst. Pushpa, (1979) Vol. V Rajasthan Crimnal Cases 73 helps the non-petitioner. In this case it was held that the courts below erred in fixing an arbitrary amount of maintenance without considering the earn ing capacity of husband. The award of maintenance was reduced from Rs 200/- to Rs. 100/- per month from the date of application. This was also a case u/s 482 Cr. P.C In view of this case of our own High Court the present application which is also u/s 482 Cr. P.C has been considered. The non-petitioner been awarded Rs 150/- per month, There is nothing on the record to prove the income of the husband petitioner. He should have proved his monthly income so that the court could arrive at a reasonable conclusion. In the absence of this proof about his income the amount of Rs. 150/- p.m cannot be said to be unreasonable. Therefore, this argument too is not acceptable.
18. Mr. Kala also argued that after coming into force the Muslim Women (Protection of Rights on Divorce) Act, 1986 a divorced Muslim woman is not entitled to any maintenance u/s 125 Cr. P.C By this Act her rights have been taken away. In this regard he has referred to section 7 whicn says “every application by a divroced woman u/s 125 or 127 of the Cr. P.C 1973 II of 1974), pending before a Magistrate on the commencement of this Act shall notwith standing anything contained in that Code and subject to the provisions of section 5 of this Act, be disposed of by such Magistrate in accordance with the provision, of this Act.” When this Act came into force the application u/s 125 Cr P.C was not pending before the Magistrate. He had pronounced the order’ on that application and the petitioner preferred a revision before the Addl. Sessions Judge which was pending Therefore, in view of section 7 of the Act the application u/s 125 Cr. P.C was not pending but was disposed of Though the revision petition was pending against the order. Therefore, the argument that after coming info force of this Act Mst. Zaida the non-petitioner has no right to claim any maintenance allowance is not acceptable. This Act is no bar to the present case.
19. As already observed above the prayer for granting installments in the payment of the amount has no substance and this request is also disallowed. The petition u/s 482 Cr. P.C has no substance and it is, therefore herby dismissed.
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