Bombay High Court
Chandrakant Gangaram Gawade vs Sulochana Chandrakant Gawade And ... on 13 December, 1995
Equivalent citations: 1996(3)BOMCR603, 1997CRILJ520, 1996(2)MHLJ341
ORDER
1. This is a petition directed against the order dated 7-10-1988 on Exh. 1 in Criminal Application No. 50 of 1988 on the file of the Chief Judicial Magistrate, Sawantwadi, Dist. Sindhudurg. Heard both the sides.
2. The first respondent-wife filed a petition for maintenance in the Court below under Section 125 of the Code of Criminal Procedure.
The petitioner-husband filed an application Exh. 1 stating that the application is not maintainable since the marriage between him and the wife has been dissolved by a decree of divorce on the ground of adultery as per order dated 31-3-1986 in M.J. Petition No. 1132 of 1986 on the file of City Civil Court. Bombay. In view of the finding in that case that the wife is living in adultery, the wife is not entitled to maintenance.
After hearing both the sides, the learned Magistrate held that no order can be passed on the application till the parties adduce evidence regarding adulterous conduct of the wife and therefore, directed the husband to file written statement and that he will pass the orders only after both the parties adduce evidence. Being aggrieved by that order, the petitioner has come up with this petition.
3. The learned Counsel for the petitioner contended that in view of the finding in the divorce case that the wife is living in adultery and therefore, she is not entitled to claim maintenance as provided in Section 125(4) of the Code of Criminal Procedure and that the order of the learned Magistrate calling upon the petitioner to file written statement and to adduce evidence is not sustainable in law. On the other hand, the learned Counsel for the first respondent supported the impugned order and contended that there should be clear evidence to prove that the wife is living in adultery and mere stray act of adultery is not sufficient even if it is found to be true. It was also argued that the decree in divorce case is an ex parte decree and the wife had not adduced evidence to prove her case.
4. Even if there is a valid decree for divorce, still, the wife is entitled to claim maintenance. In Section 125 of the Code of Criminal Procedure, in Explanation (b) it is provided that wife includes divorced woman. Therefore, the fact that there is a valid decree for divorce by itself is no around to deny the maintenance to the wife.
Section 125(4) of the Code of Criminal Procedure provides that wife is not entitled to maintenance from her husband if she is "living in adultery". In order to get the benefit of Section 125(4) of the Code of Criminal Procedure, the husband has to plead and prove that the wife is living in adultery.
5. The husband has not even filed his written statement. Further he has not adduced any evidence regarding the adulterous conduct of the wife.
The only document produced is the ex parte judgment of the City Civil Court, Bombay in M.J. Petition No. 1132 of 1986 where no doubt, the Civil Court on the basis of the evidence of the petitioner held that the wife has given birth to a child due to illicit relationship with one Nagesh Gawade and on that ground granted a decree for divorce.
The Civil Court judgment does not show that the wife was living in adultery. A child can be borne even if there is a single lapse on the part of the wife in having illicit relationship with another man. Therefore, mere production of the Civil Court Judgment may not by itself be sufficient without additional evidence to come to a positive conclusion that the wife is living in adultery.
The learned Counsel for the petitioner invited my attention to a case reported in Shravan v. Anjanabai, 1985 Cri LJ 1213 (Bom). In that case, the husband, had pleaded that the wife is living in adultery. The husband's request for adjournment to adduce evidence on this point was rejected. This Court observed that the husband must have an opportunity to adduce evidence and remanded the case to the learned Magistrate. In fact during the course of the judgment, this Court has observed that as a proposition of law, mere one instance of lapse from the path of virtue will not amount to wife living in adultery. It is further pointed out that there has to be a course of adulterous conduct on the part of the wife to disentitle her from maintenance. In that case, there was an admission of the wife during the investigation of a criminal case that she had illicit relationship with another person. This Court observed that it is better that both the parties are permitted to adduce evidence on this point and remanded the case. In my view, this decision will not give any assistance to the petitioner. Even in this decision it is clearly mentioned that a single lapse or a stray lapse will not amount to the wife "living in adultery".
6. The learned Magistrate in the impugned order has relied upon Kasturi v. Ramasamy, 1979 Cri LJ 741, where the Madras High Court has held that "living in adultery" in Section 125(4) of the Code of Criminal Procedure means outright adulterous conduct on the part of the wife. It has been explained that stray act of illicit intercourse will not amount to "living in adultery".
7. The learned Counsel for the wife-respondent No. 1 has invited my attention to three decisions on this point.
In (1986) 2 DMC 448 : (1987 Cri LJ 655) Rachita Rout v. Basanta Kumar Rout, the Orissa High Court took the view that the words "living in adultery" undoubtedly connotes a course of adulterous conduct more or less continuous. It is further pointed that an occasional lapse would not give sufficient reason for refusing maintenance within the ambit of Section 125(4) of the Code of Criminal Procedure.
In (1991) 2 DMC 422 Ravendra Singh v. Kapsibai, the Madhya Pradesh High Court also took the same view. In paragraph 8 of the reported judgment, it has been observed that "living in adultery" means wife continuously committing volition of the marriage bed, indulging in adulterous life. It is further pointed out to establish this fact more than one instance of adultery has to be brought home to the knowledge of the wife in order to show that she is "living in adultery" within the meaning of Section 125(4) of the Code of Criminal Procedure.
In 1993 Cri LJ 238 (Orissa) Baishnab Charan Jena v. Ritarani Jena a similar question arose. After referring to number of decisions on the point, it is pointed out that merely proving one or more instances of lapses in the character of the wife is not sufficient for the husband to get over his liability to pay maintenance. In other words, the emphasis is about continuous adulterous conduct on the part of the wife.
8. In my view, the learned Magistrate has taken the correct view. The question whether the wife is living in adultery is purely a question of fact. Both parties have to plead and will prove their respective allegations. In the present case, the husband has not even filed his written statement much less leading evidence on this point. The point cannot be decided on mere application on the ground that the husband has obtained a decree of divorce on the ground of adultery. We do not know whether the allegation against the wife was a single act of lapse on the part of wife or it was a continuous course of adulterous behaviour. In view of the law explained above a mere stray or single lapse on the part of the wife is not sufficient to bring her conduct within the meaning of "living in adultery" provided in Section 125(4) of the Code of Criminal Procedure. It should be a continuous course of adulterous conduct. Whether in a given case 2/3 lapses or staying with the paramour for 2/3 months would be sufficient is clearly a question of fact. The learned Magistrate has not given any finding on this question but has only directed the husband to file written statement and to adduce evidence; no exception can be taken to the order of the learned Magistrate. Hence, in my view no ground is made out for interference with the impugned order.
9. In the result, the petition is dismissed. However, the petitioner-husband is directed to file his written statement within six weeks from today. After such written statement being filed. The learned Magistrate shall allow both the parties to adduce evidence and decide all the contentions accordingly. Since this is an old maintenance case of 1988, the learned Magistrate is directed to dispose of the case expeditiously on merits according to law. Stay is vacated.
10. Petition dismissed.