Madras High Court
Rajapandian vs Puspavalli And Anr. on 22 March, 1996
Equivalent citations: I(1997)DMC435
JUDGMENT Karpagavinayagam, J.
1. The petitioner Rajapandian is the respondent in M.C. No. 35 of 1987 of the file of Judicial Magistrate No. 2, Madurai, which was filed by his wife Puspavalli, the 1st respondent herein claiming maintenance ofRs.300/- for herself and Rs.200/-permonth for her minor daughter Rajeswari, is the same was dismissed by learned Trial Magistrate, the wife filed a revision before the 1st Additional Sessions Judge, Madurai in Cri. R.C. No. 51 of 1991, which was ultimately allowed by Order dated 12.1.1993. This order is under challenge in this Court by way of revision, by the petitioner/husband.
2. The short facts for the disposal of the revision could be summarised as follows:
The marriage between the petitioner Rajapandian and the 1st respondent Pushpavalli was held on 28.6.1985 as per Hindu customary rites. Thereafter they lived together for sometime. The petitioner/husband made an accusation, that the 1st respondent wife had an illicit intimacy with his brother-in-law, so she had to leave the husband and join her parents. After she begot the 2nd respondent, she went alongwith the child to the house of the husband. But the husband did not incline to live with her, unless she brought more dowry in the form of cash and jewels. Hence, the 1st respondent was constrained to file the petition under Section 125 of Cr. P.C. claiming maintenance at the rate as mentioned earlier.
3. The contention of the husband, the petitioner, herein before the Trial Court was that the wife was not entitled to maintenance, since she was living in adultery with his brother-in-law and that the 2nd respondent was not bom to him and that he never demanded any dowry.
4. On behalf of the wife three witnesses were examined and two exhibits were marked. On behalf of the husband four witnesses were examined and three exhibits were marked.
5. I have heard learned Counsel for the petitioner as well as the respondents. Before discussing the evidence in support of their rival contentions, some dates and period are relevant for the purpose of answering the issue raised in the revision. There is no dispute regarding the fact of marriage held on 28.6.1985. According to the wife, as referred to in the maintenance petition she lived alongwith the husband for one year. But according to the husband they were living together only for one month after their marriage. While the husband was examined as R.W. 1, he would further say that on 28.7.1985, the wife/lst respondent was caught red-handed, when she was in illicit intimacy with the brother-in-law of the petitioner husband, thereafter a Panchayat was held, in which it was complained that the wife 1st respondent was living in adultery with the petitioner's brother-in-law.
6. R.W. 2 Periyasundara Thevar and R.W. 3 Ramasamy Thevar were among the Panchayatars, who would say that in the Panchayat, the wife admitted her illicit intimacy, but, however, she asked for apology by giving an undertaking that she would live with her husband as a true wife in future. As the husband petitioner was not agreeable to live with his wife, the Panchayat was dissolved without taking any decision. Thereafter, the wife/lst respondent went to the place of her father and lived with him.
7. On 28.6.1986 i.e. one year after die marriage the 1st respondent had delivered a female baby the 2nd respondent herein. Even thereafter she continued to live with her child in her parents house. On 19.7.1987 the petitioner/husband sent Ex. R 1 divorce notice by narrating the earlier incidents of her immoral conduct with his brother-in-law and the convening of the Panchayat. No reply was sent by the wife-lst respondent, inspite of the receipt of divorce notice On 27.7.1987 the petitioner filed a petition for divorce in H.M.O.P. No. 34 of 1987 on the file of the Sub-Court, Periyakulam. Only thereafter the wife filed a complaint with the police alleging dowry demand which was later charge-sheeted in C.C. No. 440 of 1989 on the file of me Judicial Magistrate No. 1, against the petitioner/husband, his sisters and parents. In the said criminal case, the sisters and parents of the petitioner were acquitted, but the petitioner was convicted by the learned Judicial Magistrate No. 1, by judgment dated 31.10.1990, sentencing him to Rl for six months and to pay a fine of Rs. 1,000/-. But the conviction and sentence imposed upon the petitioner were set aside by the Sessions Judge, on appeal by the petitioner. Having considered all the facts and circumstances, learned trial Magistrate, dismissed the maintenance petition holding that the wife and child were not entitled to get maintenance from the petitioner/husband.
8. The finding of the' trial Magistrate is based on the following facts :
(i) After the marriage held on 28.6.1985 in between the petitioner and the 1st respondent, they were living in the house of the husband only for one month;
(ii) The wife was caught re-handed, when she shared her bed with me brother-in-law of her husband on 28.7.1985.
(iii) In the Panchayat held thereafter the 1st respondent/wife admitted her illicit intimacy with another man.
(iv) The wife prior to the marriage with the petitioner Rajapandian had already married one Rajendran and since her moral conduct was bad the said Rajendran refused to live with her-,
(v) While the parents of the 1st respondent wife took the 1st respondent to their house after the above referred Pachayat, she was not pregnant. Thereafter the 1st respondent and the petitioner did not join together.
(vi) Though the wife has received the legal notice dated 19.7.1987 "k issued by the husband for divorce, narrating the entire earlier events, she has not sent any reply rebutting the same.
(vii) The petition for maintenance has been filed by the wife only after the husband filing the petition for divorce, as a counter blast.
(viii) The complaint filed by the wife for dowry demand against the husband was ended in acquittal in appeal filed by the husband before the Sessions Court.
(ix) There is no conclusive proof to show that the child of the wife/Ist respondent was born to the petitioner/husband since the 1st respondent was not pregnant while she left the petitioner/husband.
For these reasonings, as referred above, the lower Court dismissed the petition for maintenance. Aggrieved at this the 1st respondent/ wife filed a revision before the 1st Additional Sessions Court, Madurai. The revision Court, however, passed an order allowing the revision and directing the petitioner to pay maintenance @ Rs. 300/- p.m. to the wife/Ist respondent and Rs. 200/- p.m. to the minor daughter/2nd respondent.
9. It is very unfortunate that the revision Court, even without referring to die reasoning given by the lower Court has allowed the revision on the appreciation of evidence on its own, which could be permissible only in appeal. Time and again the Courts have held that in the Revision, the powers could be invoked and interference could be made by the revision Court, only when there is a glaring defect in the order of illegality in the finding of the Court below on over-looking the material evidence which has caused flagrant miscarriage of justice. But, in this case, the Revision Court viz., learned 1st Additional Sessions Judge, Madurai, reappraised the entire evidence and come to his own conclusion on the reliability of such evidence and passed an order awarding maintenance to the respondents herein. The Revision Court, though disbelieved the evidence of the wife, that she lived with her husband for one year after their marriage, and though it took into consideration of the evidence of husband that he was living with his wife only for one month after their marriage, has given a finding that after marriage they were living together for sometime/which is a vague conclusion, because the question how long they lived together would be a very relevant one for deciding the issue, whether the child was born through the petitioner or not. The 2nd respondent/ minor Rajeswari was born to the 1st respondent wife on 28.6.1986, exactly, one year after the marriage between the petitioner and the 1st respondent. If the evidence of the petitioner/husband that they were living together for only one month after their marriage, on 28.6.1985 is accepted, then the ultimate conclusion to be arrived at would be that the child could have been born to the petitioner. The 2nd respondent was born on 28.6.1986 and then the 1st respondent/wife must have conceived only two months after her marriage. But they lived for only one month. In that fact situation, there is no difficulty in coming to the conclusion that the child/2nd respondent was not born to the petitioner. As such, I am of the view, that in the absence of evidence, to the above referred aspect, the wife has failed to prove the case as to the birth of the child to the petitioner.
10. Regarding the claim of maintenance for the wife is concerned, the finding of the revision Court is that though there are evidence of R.W. 4 the sister of the petitioner and R.Ws. 2 and 3 to the effect, that the wife had illicit intimacy with the brother-in-law of the petitioner in view of some minor contradictions, the Court disbelieved their evidence by indulging in the appreciation of the factual aspects. As stated earlier, the reliability or otherwise of the evidence, as spoken to by the witnesses could not be permitted and the interference could be made only under extraordinary circumstances as held by this Court as well as by the Apex Court. The lower Appellate Court, while allowing the revision has committed serious illegalities, by disbelieving one set of evidence adduced on behalf of the petitioner/husband and by non-mentioning the reasons to set aside the judgment of the trial Magistrate, who dismissed the claim for maintenance.
11. Of course, various decisions have been referred to by learned Counsel for the respondents in Pallayee Ammal v. Manickam Gounder and Anr., , in Papammal v. Dhannan, 1970(2) MLJ 81; in S.S. Manickam v. Arputha Bhavani Rajam, 1979 LW Crl. 143; in S. Gulam Mohindeen v. Rasheeda Fathima Niga Begam and Anr., 1981 TLNJ 7, in order to show that a single incident as referred to by RW 4, Indirani, the sister of the petitioner husband in the case and R.Ws. 2 and 3, the Panchayatars cannot be sufficient, to prove the ingredients of living in adultery as contemplated in Section 125, Cr.P.C. There is no second opinion to this proposition, since the terms living in adultery as contemplated in Section 125, Cr. P.C. There is no second opinion to this proposition, since the term living in adultery is merely indicative of the principle that a single or occasional lapse from virtue is not a sufficient reason for refusing maintenance. The essence of all the judicial pronouncements is to the effect that when the husband challenged the claim for maintenance of his wife, alleging that his wife is living in adultery, the husband should prove that there is a continued adultery and that a single lapse cannot be equated with the phrase 'living in adultery'.
12. However, learned Counsel for the petitioner referred to the decision reported in AIR 1937 Rangoon 67, Mathein v. Maung Myakhin, wherein the Court observed that the phrase 'living in adultery' refers to course of guilty conduct and not a single lapse from virtue. It was further held that the fact that a child was begotten when the husband could not get access to the wife showed that the wife must have been guilty of adultery on more than one occasion and therefore, she was not entitled to maintenance, apparently on the presumption that it is extremely rare that conception happens after one solitary intercourse.
13. Though references were made by both sides in support of their rival submissions, I do not propose to give a finding on the question whether the incident involves a single or occasional lapse or it must be construed to be a continued adultery though the 1st respondent wife became pregnant only after she left her husband since there is yet another ground is available to allow this revision.
14. Though both the Courts below discussed the fact that the 1st respondent/ wife had already married one Rajendran, they failed to give any finding on this aspect. PW 1 the wife herself admits in her examination before the Trial Court that she married one Rajendran who belonged to Cuddalore and after some time, she married the petitioner Rajapandian, informing about her first marriage with the said Rajendran. The relevant portion of the evidence of PW 1 is as follows:
"XXX XXX XXX XXX XXX XXX PW 2, Raju, the father of the 1st respondent/wife, also admits the same as thus:
"XXX XXX XXX XXX XXX XXX"
A perusal of this piece of evidence would make it clear, while her marriage with her first husband Rajendran was in subsistence, she married, the present petitioner Rajapandiyan. At this stage, it will be relevant to refer the observations of the Supreme Court in K. Vimala v. K. Veeraswamy, 1991 LW (Cri.) 235, as follows :
"As rightly pointed out by the learned Counsel for the appellant, there is no clear admission of an earlier marriage between the respondent and Veeramma to dispense with the proof of subsisting valid first marriage when the second marriage was solemnised. In the absence of such an admission, the statement that the respondent is living with another woman as husband and wife cannot there persuade the Court to hold that the marriage duly solemnised between the appellant and the respondent suffers from any legal infirmity".
15. In this case, there is a clear admission by the 1st respondent/wife while she was examined as PW 1 regarding the marriage between herself and Rajendran which was in subsistence while she married the petitioner Rajapandian. This aspect has not been considered and taken note of by both the Courts below. As the wife has not proved her legal status as wife, who is not entitled to claim any maintenance. In the above referred case, the second wife claimed maintenance against her husband, while the marriage of the husband with first wife was in subsistence. The same analogy will be applicable to the present case also/since the wife herself admits that she married one Rajendran and living with him for some time. From the foregoing analysis, I am of the view, that the reasonings given by the revision Court for awarding maintenance to the respondents are not sound, proper and the same are liable to be set aside, on the ground that the order of the 1st Additional Sessions Judge, Madurai is perverse, which has caused flagrant miscarriage of justice.
16. In the result, the revision is allowed. The order of revision Court, awarding maintenance to the respondents is set a side and the order of the learned Trial Magistrate, dismissing the maintenance petition is restored, since the respondents are not entitled for maintenance.