This petition under Section 482 of the Code of Criminal Procedure, 1973 by the petitioner is directed against an order dated 16th December, 2010, passed in Criminal Revision No. 114/2010, by the First Additional Sessions Judge, Jaura District Bhind, whereby the order dated 8th July, 2010 passed in Criminal Case No. 05/2010 by the Judicial Magistrate, Jaura was partly confirmed and the monthly maintenance allowance awarded to the respondent/wife and her son was reduced up to Rs. 1200/-.
2. The facts in short, just for the decision of this petition is that the respondent was married to the petitioner and she is his legally wedded wife. Out of their wedlock, one child was born. That child is residing with his wife, who at present is residing with her parents. It is alleged by the petitioner that one Bharat Gujar forcibly kidnapped of his wife and created obstructions in their marital life.
3. The petitioner filed the petition under Section 9 of the Hindu Marriage Act, which was pending. It is stated that during proceedings the respondent did not turn up to resume marital relations nor submitted any reply. It is also admitted that the respondent was willing to return back to her matrimonial house, but since last as criminal case was pending, she was inclined to return. The petitioner alleged that the respondent had the independent source of income to maintain herself. The respondent-wife categorically denied the allegations of the petitioner. She contended that the petitioner for illegal demand of money and articles, tortured her mentally and physically. He forcefully exiled her from her matrimonial house. She has no source of income to maintain herself. The petitioner is a shop-vendor and has the sufficient source to maintain her. After considering the submissions of both the sides, the learned Trial Court awarded a sum of Rs. 1500/-, as monthly maintenance to the respondent-wife. Against that a revision was preferred in which the monthly maintenance amount awarded to the respondent-wife was reduced to Rs. 1200/-, hence, this petition.
4. The contention of the learned Counsel for the petitioner is that the orders by the Trial Court as well of Revisional Court both are passed in a mechanical manner and without application of mind and also against the provisions of Sections 125 (4) of the Code of Criminal Procedure, 1973. The Revisional Court while passing the impugned order ignored the material fact that the respondent-wife is living adulterous life with one Bharat Gurjar, hence she is not entitled to maintenance from her husband. It is further contended that during proceedings in the petition for restitution of conjugal rights, she did not intend to return back to her matrimonial house. Therefore, it was prayed that the petition be allowed and the order impugned be quashed.
5. Learned Counsel appearing for the respondent on the other hand, contended that there is no illegality or irregularity committed by the Courts-below and, therefore, no interference is called for.
6. Heard the learned Counsel for the parties and perused the record.
7. A perusal of the provisions of Section 125 (4) of Cr.PC makes it clear that a stray act of adultery on the part of the wife does not amount to adultery within the meaning of Section 125 (4) and further does not dis-entitle the wife to maintenance. The expression "living in adultery" connotes a course of adulterous conduct more or less continuous and not occasional.
8. In the case of Aleti Jagdeeshwari Vs. Aleti Bikshaparhy, 1998 Cri.LJ 2503 (AP) and M.P. Subramaniyam Vs. T.T. Ponnakshiammal, AIR 1958 Mys. 41 = 2958 Cri.LJ 397, it is observed :-
"After careful consideration of the law on the point, we are of the opinion that it is not a stray act or two of adultery that dis-entitles 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. It is significant to note that the wording in section 488 (4) of the cr.pc is not 'if she commits adultery' but 'if she is living in adultery'. To our mind there is a certain amount of emphasis on the term 'living'. A mere lapse, whether it is one or two, and a return back to normal life cannot be said to be 'living in adultery'. If the lapse is continued and followed up by a further adulterous life, the woman can be said to be 'living in adultery'."
9. In the present case also, same situation emerges from the material on record. As per the averments made in the petition, the respondent was forcibly taken away in the presence of the petitioner-husband by said Bharat Gurjar. The learned Trial Court in Para 9 of the impugned order has come to the conclusion that from the evidence on record it is proved that the respondent is living with her parents and not with any other person named Bharat Singh Gurjar. Therefore, the allegation levelled by the petitioner against his wife does not found established by the material on record. The words "living in adultery" means wife is habitual in committing acts of adultery. Under such circumstances and in the light of above decisions, the respondent-wife cannot be said to be dis-entitled to receive maintenance. Although the petitioner has raised a ground that the respondent is earning from independent source and she is capable to maintain her, but that ground could not be proved by placing cogent evidence. The expression "unable to maintain herself only connotes that the wife has no other means or source to maintain herself. Moreover, inability of the wife to maintain herself cannot be judged in the light of her capacity to make a living. In that view of the matter, if the learned Trial Court has held the respondent liable to receive maintenance from her husband to maintain herself and son and awarded maintenance amount, it cannot be said to have committed any illegality or irregularity in doing so. Resultantly, this Court does not find any force in the present petition: Same is hereby dismissed in limine.
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