Kerala High Court
Rupa.C vs Puthalath Anil Kumar on 13 January, 2021
Author: Mary Joseph
Bench: Mary Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
WEDNESDAY, THE 13TH DAY OF JANUARY 2021 / 23TH POUSHA, 1942
RPFC.No.107 OF 2020
AGAINST THE ORDER/JUDGMENT IN MC 75/2019 DATED 29-01-2020 OF
FAMILY COURT, THALASSERY
REVISION PETITIONERS/PETITIONERS:
1 RUPA.C.
AGED 49 YEARS
D/O.CHANDUKUTTY, SRUTHY, POST CHALA EAST-670 621,
KANNUR DISTRICT, KERALA.
2 ARJUN ANIL,
AGED 16 YEARS
S/O.ANIL KUMAR, SRUTHI, POST CHALA EAST-670 621,
KANNUR DISTRICT, KERALA, 2ND PETITIONER IS MINOR
REPRESENTED BY GUARDIAN AND MOTHER 1ST PETITIONER
RUPA.C.
BY ADVS.
SRI.T.ASAF ALI
SMT.LALIZA.T.Y.
RESPONDENT/RESPONDENT:
PUTHALATH ANIL KUMAR
AGED 55 YEARS
S/O.NARAYANAN, ANILALAYAM, MAMBA, POST
ANJARAKKANDY-670 612, KANNUR DISTRICT, KERALA.
R1 BY ADV. SRI.P.K.RAVI SANKAR
THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD
ON 10-08-2020, THE COURT ON 13-01-2021 PASSED THE FOLLOWING:
RP(FC) No. 107 of 2020
-:2:-
'C.R.'
MARY JOSEPH, J.
------------------------
R.P(FC) No. 107 of 2020
------------------------
Dated this the 13th day of January, 2021
ORDER
The revision on hand is filed challenging an order passed by Family Court, Thalassery on 29.01.2020. The revision petitioners are petitioners before the Family Court in M.C. No.75/2019. The Family Court, Thalassery allowed the M.C. in part on the following terms:
I. The respondent shall pay monthly maintenance at the rate of Rs.15,000/- (Rupees Fifteen thousand only) to the 2 nd petitioner with effect from the date of the petition i.e. 01.03.2019.
II. The 2nd petitioner shall get maintenance only up to his age of majority.
III. The 1st petitioner shall collect the maintenance amount for and on behalf of petitioner No.2.
IV. The claim of maintenance for the 1 st petitioner is negatived."
2. Aggrieved by the order disallowing the claim of the 1 st petitioner for maintenance for the reasons that the petitioner though unemployed at the relevant time is capable of getting an employment in view of her previous experience as an RP(FC) No. 107 of 2020 -:3:- employee in the managerial cadre in a financial institution at Gulf and that she is living in adultery with a man namely Praveen. Challenge was also raised against the sum ordered as monthly maintenance to the 2nd petitioner for the reason that it is on the lower side.
3. Statement of facts of the case being relevant for consideration of the revision are made hereunder in brief. For clarity, the parties to this revision will hereinafter be referred to as the petitioners and the respondent in accordance with their status in the M.C.
4. The 1st petitioner and the respondent got married on 17.06.1994 at Sadhoo Kalyanamandapam, Kannur as per the customary rights prevailing in the Hindu Community. Two children were born in the wedlock. From the inception of the marriage itself, the conduct of the respondent and his family members towards the 1st petitioner was indifferent. They did not allow her to mingle with others or to leave the house without their permission. They used to ill-treat her. After six months of the marriage the respondent went to Gulf to resume his job. He came back immediately and after staying together for two months, left again for Gulf. In the meantime the 1 st RP(FC) No. 107 of 2020 -:4:- petitioner got conceived, but proper treatment was denied to her. The respondent who was educated only upto Plus Two, had inferiority complex on account of the higher educational qualification of the 1st petitioner. When the child attained the age of three years, the respondent insisted the 1 st petitioner to go for work. Therefore, she was constrained to do job after putting the child in the play school. She was getting Rs.1,50,000/- as salary. The salary of the 1 st petitioner was managed by the respondent and was reluctant to spare any amount for her. In the year 2002, the 1st petitioner gave birth to the 2nd child. Though, she decided to resign her employment for taking care of the child, the respondent was against that. The 1st petitioner was promoted to the post of Manager in the year 2008 and was given a car and a rent free accommodation by her employer. The respondent found pleasure in enjoying all the amenities received by the 1 st petitioner. He insisted the 1st petitioner to visit the house of his sister who was settled at Gulf, but the 1 st petitioner does not like that. For the reason the respondent started to scold her. On 30.10.2001, a landed property was purchased by the respondent at Chakkarakkal utilising the earnings of the 1 st RP(FC) No. 107 of 2020 -:5:- petitioner. The 1st petitioner came to know much later that the deed in respect of the property was registered in the name of the respondent alone. A wordy altercation ensued on questioning that, and it culminated in causing physical hurt. In 2010, a house was also purchased at Pallikkulam utilising the earnings of the 1st petitioner. The 1st petitioner and the respondent arrived at their hometown to attend the marriage of the son of one of the friends of the former. After attending the marriage the respondent hurried to Gulf. Utilising the income of the 1st petitioner, the respondent started a business, supermarket and resort. The respondent finds satisfaction in spending his time with his mother and did not find time to care the 1st petitioner. On 14.04.2018, the 1 st petitioner had been to Kozhikode to attend the 'Alumni' arranged at her College. At Karipur Airport, the 1 st petitioner met her classmate and he accompanied her to a hotel situated near to the Airport for getting refreshed. To the utter dismay of the 1 st petitioner, she came to know later that a videographer was engaged by the respondent to take her video and the video was sent by him to the respondent. On the same day, the respondent reached his hometown and quarrelled with the 1 st petitioner. The RP(FC) No. 107 of 2020 -:6:- respondent had taken nude photographs of the 1 st petitioner by placing camera inside the bathroom. The photographs taken were also sent to the friends and relatives of the 1 st petitioner through fake Facebook ID. The petitioner when came to know about it, lodged a complaint against the respondent at Gulf on 23.10.2018. A case was registered by the police and investigation is progressing on its basis. The 1 st petitioner had also lodged a complaint before the Chakkarakkal Police Station and Crime No.726/2018 was registered under Sections 498A read with Section 34 IPC and Section 67A of the Information Technology Act. Thereafter, the 1 st petitioner joined the respondent at Gulf but, she was locked up in the house and was tortured mentally as well as physically and was also denied contact with others. The 1st petitioner informed the matter to her friend through her children and rushed to her native place. The 1st petitioner has no source of income at the relevant time. The 2nd petitioner, who was minor at the relevant time was looked after by her. The respondent was working as a sales executive in Thani Murshid Uni Liver Al Ain, UAE. He also owns a flat at Ajman, UAE which yields Rs.50,000/- monthly. He was also conducting a super market RP(FC) No. 107 of 2020 -:7:- and obtained Rs.2,00,000/- monthly. He owns a flat at Kozhikode which has been leased out and Rs.25,000/- is obtained as monthly rent. He is a share holder of Kannur International Airport. Thus, his total monthly earning is Rs.6,50,000/-. Since she was unable to sustain livelihood of herself and her minor child, M.C. Was filed seeking for Rs.50,000/- and Rs.35,000/- respectively as monthly maintenance allowance.
5. In the counter statement filed by the respondent the status of the 1st and 2nd petitioners respectively as his wife and child was admitted. The rest of the pleadings in the M.C were denied. Contentions were raised to the following effect:- After the marriage, the 1st petitioner and the respondent resided together as husband and wife in the house of the respondent. The matrimonial life of the respondent with the 1 st petitioner was smooth at the inception but lateron some changes developed in the conduct of the 1 st petitioner. She started to engage in secret conversations over phone and informed on enquiry that the person talking to is her classmate. The respondent was informed later that the conversation was with one Mr.Praveen. It was also brought to his knowledge that the RP(FC) No. 107 of 2020 -:8:- 1st petitioner accompanied the said Praveen to various places like Chennai, Goa, Bangalore and Cochin and stayed in hotels. On 18.02.2018, the marriage of one of the relatives of the 1 st petitioner was held at Guruvayoor and despite the arrangements made for stay of the invitees of the function at Krishna Inn, Guruvayoor, the 1st petitioner who arrived at Guruvayoor on 16th to attend the marriage, managed to take a room at Bhasuri Inn, Guruvayoor and stayed there alongwith Mr.Praveen. The respondent had given around Rs.1.5 Crores from his hard earned money to the 1 st petitioner and the same is admittedly deposited in various banks. Thus the 1 st petitioner has huge money in deposit and interest is obtained therefrom. The respondent does not own a flat at Ajman, UAE or a supermarket at Kozhikode. The amount claimed as maintenance is exorbitant. The 1st petitioner is living in adultery and therefore is not entitled to get maintenance and the petition filed for the purpose is deserved to be dismissed.
6. Evidence was adduced by both parties in the Maintenance Case. The 1st petitioner was examined as PW1 and her son as PW2. Exts.P1 to P12 were also marked. On the side of the respondent, himself and five witnesses were RP(FC) No. 107 of 2020 -:9:- examined as RW1 to RW6 and Exts.D1 to D6 were marked. On appreciation of the evidence adduced on either side the Family Court found that the 1st petitioner is living in adultery with Mr.Praveen, her classmate and that there is every prospects for her to get an employment in view of her previous working experience in Managerial cadre in a financial institution at Gulf. Accordingly, the Family Court found the 1 st petitioner as able to maintain herself. Thereby her claim for monthly maintenance allowance was declined and the M.C to that extent was dismissed. The Family Court has found the 2 nd petitioner, admittedly the son of the respondent entitled to get maintenance allowance and directed the respondent to pay Rs.15,000/- monthly, from the date of the petition.
7. Sri.Asaf Ali, the learned counsel for the petitioners on behalf of the 1st petitioner has contended that the Family Court is highly erred in declining her claim for monthly maintenance allowance after arriving at a finding that the latter is living in adultery with one Mr.Praveen who is a Colleague and friend of her. According to him, the factum was not pleaded by the respondent in his counter statement and established by cogent and reliable evidence. According to RP(FC) No. 107 of 2020 -:10:- him, sub-section (4) of Section 125 is an exception to sub- section (1) of Section 125 Cr.P.C which says that a wife is not entitled to receive maintenance allowance from her husband, who had neglected her, if she is living in adultery. According to him, it is settled by judicial pronouncements of various courts that a single instance of proven adultery of wife is not at all sufficient to deny her claim for monthly maintenance allowance from her husband. According to the learned counsel the Family Court failed to lost sight of the difference in the meaning of the words "living in Adultery" and "committing adultery". According to him, in the case on hand, the respondent failed to plead in his counter statement and adduce any convincing evidence that the 1 st petitioner is living in adultery and therefore, the Family Court is unjustified in holding that the 1st petitioner is living in adultery with Mr.Praveen and thereby declining her claim for monthly maintenance. According to him, convincing evidence is totally lacking before the Family Court to establish the adulterous life of the 1st petitioner with Mr.Praveen and therefore the finding of the Court that 1st petitioner is living in adultery and therefore is disentitled to get maintenance is vitiated and only RP(FC) No. 107 of 2020 -:11:- to be reversed. According to him, for a single act of unchastity of the wife or for any lapse in her moral life, it cannot be said that she is living in adultery and she cannot be disqualified from getting monthly maintenance from her husband under Section 125 Cr.P.C. The learned counsel has also urged that the finding of the Family Court that the 1 st petitioner has future prospects for getting employment and therefore, ability to maintain herself is totally devoid of any basis. According to him, the 1st petitioner is established as unemployed at the relevant time and the factum has also been conceded by the respondent. But, the Family Court overlooked those and held that the 1st petitioner is a lady having means to sustain her livelihood. According to him, the employment of the lady at the relevant time and not her prospects to obtain employment, that is decisive of her entitlement to get monthly maintenance. According to the learned counsel the court below ought to have found on the basis of the evidence on record that the 1st petitioner was unemployed at the time of consideration of the M.C and being a destitute, has every right to get maintenance allowance from the respondent, who has neglected to RP(FC) No. 107 of 2020 -:12:- maintain her. Thus, the impugned order to the extent it declined the claim of the 1st petitioner was sought to be set aside. The learned counsel has also urged that the 2 nd petitioner who was established as pursuing his education as a Plus Two student, is in dire need of money to meet expenses of his education and other provisions. According to the learned counsel, though receipts disclosing Rs.17,381/- as the monthly tuition fee of the 2nd petitioner are produced, in view of the objection raised by the respondent against its admissibility in evidence for non-examination of the person who issued those, the Family Court did not advert to those. The Family Court has found on the basis of Ext.P10 that the respondent was getting Rs.1,60,000/- per month including other allowances. The Family Court was also convinced from the evidence that the respondent owns two flats in Chennai, a luxurious BMW Car and 17 cents of land in his native place. Thus, the respondent was found by the Family Court as a man having income more than Rs.2,00,000/-. According to the learned counsel, despite having been convinced of matters as above, the Family Court fixed only Rs.15,000/- as monthly maintenance allowance payable to the 2nd petitioner. For the reasons discussed above, RP(FC) No. 107 of 2020 -:13:- interference and modification of the rate fixed as monthly maintenance allowance in favour of the 2 nd petitioner as per the impugned order, is sought.
8. Sri.Asaf Ali has placed reliance on Dr.Pradeep Kumar Sharma v. Ratna Sharma rendered by the High Court of Delhi in CM(M) 50/2007 and CM 15892/2008 to rest his contention that the entitlement of the wife to get pendente lite alimony from her husband cannot be denied for the sole reason that she is employed and is getting a meagre sum. The learned counsel has also relied on the dictums in Sandha v. Narayanan [1999 KHC 159] and Mercy and Others v. V.M.Varughese [1968 KLT 154] to rest his contention that maintenance cannot be declined to a wife for her involvement in a single act of unchastity. Nesamma v. Manuvel Hentry [1961 KHC 267] was also cited by the learned counsel to substantiate his contention that living in adultery means involving in more than mere occasional lapses from virtue or immoral conduct long before the time, maintenance is applied for. Mohandas Panicker P. v. K.K. Dakshayani and another [2014 (1) KHC 253] is also relied on to contend that when adultery is raised as a ground for divorce, the degree of RP(FC) No. 107 of 2020 -:14:- proof that is required is preponderance of probabilities, which is the standard adopted to prove a civil case. The Division Bench in the decision has also directed the courts to bear in mind that direct evidence is difficult to be adduced in cases of adultery. According to him, the Division Bench has also held that proof of sexual intercourse between a married person and a person of the opposite sex, not being the other spouse, whether married or unmarried is essential to be established.
9. Sri.P.K. Ravisankar, the learned counsel for the respondent on the contrary has contended that the court below is perfectly justified in its finding that the wife is living in adultery and therefore is disentitled to get maintenance allowance from the husband. According to him, the Family Court cannot be found fault with in holding that the wife who has working experience in managerial cadre at Gulf for a long duration has prospects to get an employment of allied nature and therefore is able to maintain herself. According to the learned counsel, on appreciation of the evidence on record in the correct perspective, the Family Court has fixed Rs.10,000/- as the monthly maintenance allowance payable to the 2 nd petitioner and the same being a just and reasonable sum, RP(FC) No. 107 of 2020 -:15:- enhancement sought for is unwarranted. The learned counsel has also relied on the dictum in Bakulabai v. Gangaram [1988 (1) KLT 413] to submit that a revisional court is not empowered to reassess the evidence and substitute its views for those of the court below.
10. On a thorough scrutiny of the counter statement, this Court noticed that in paragraph 16, a contention is precisely taken that since the 1st petitioner is living in adultery, the respondent is not liable to maintain her. Therefore, the argument of the learned counsel for the petitioners that a plea to the effect is not taken in the counter statement is discarded, being devoid of merits.
11. The Family Court on appreciation of the evidence has found that 1st petitioner is living in adultery and therefore is disentitled to get monthly maintenance. Accordingly the claim of the 1st petitioner for monthly maintenance was declined. Since a challenge is raised against that finding, it is incumbent upon this Court to see whether the Family Court is justified or not in doing so. The 1 st petitioner was examined before the Family Court as PW1 and the respondent as RW1. The respondent has stated during examination as RW1 that his RP(FC) No. 107 of 2020 -:16:- wife had immoral relationship with one Mr.Praveen and that he has been informed by several occasions, of which narrations have also been made by him. According to the respondent, the life after marriage was smooth for sometime and discomforts developed only after the birth of the children. The 1st petitioner began to chat with someone over phone. Though she had explained to the respondent that she was talking to some of her classmates, it was realised later that the man at the other end of the phone was none other than one Mr.Praveen. According to him, 1st petitioner had accompanied Mr. Praveen to various places like Chennai, Goa, Bangalore and Cochin and also stayed together in hotels. On the occasion of the marriage of one of the relatives of the 1 st petitioner at Guruvayoor on 18.02.2018, evading the arrangements for accommodation made by the hosts, she stayed with Mr.Praveen in a room at Bhasuri Inn, Guruvayoor. When confronted with the above during cross examination, PW1 has stated that her stay at Bhasuri Inn was with several of her friends. Family Court has observed in the context that it was improper for PW1 to stay with male members in a single room. RP(FC) No. 107 of 2020 -:17:-
12. RW1 had also spoken about an occasion when the 1 st petitioner had met Mr.Praveen at Calicut Airport. According to him, the 1st petitioner went to Calicut for attending the Alumni function and at the Airport Mr.Praveen joined her and they went to a nearby hotel and they stayed there till 4 p.m. PW1 when confronted with the above, conceded it, but explained that they went there for getting refreshed. The learned counsel for the respondent argued before the Family Court that when a convenient toilet facility was available at the Airport, there is no logic in taking a room at the nearby hotel for the purpose. The Family Court observed in the said backdrop that the 1st petitioner had no sufficient reason other than immoral ones, while taking a room at a hotel near to the Airport and to spent time with Mr.Praveen till 4 p.m. The respondent during examination has also spoken about the joint stay of the 1 st petitioner and Mr.Praveen at various places like Chennai, Goa, Bangalore and Cochin. But, he failed to adduce any independent evidence to fortify the said version.
13. The elder sister of the 1st petitioner was examined by the respondent as RW2. She has spoken that the 1 st petitioner and Mr.Praveen were in illicit relationship and the marital RP(FC) No. 107 of 2020 -:18:- relationship of the respondent and the 1st petitioner was spoiled for the reason. According to her, efforts to settle the issues in mediation did not yield positive results in view of the adamant stand of the 1st petitioner that she would not sever her relationship with Mr.Praveen, who is only a good friend of her. The Family Court has found in the context that only because some truth is involved, the 1 st petitioner's own sister has spoken against her in the manner. The 1 st petitioner while cross examining RW2 has attempted to brought to light that RW2 is not cordial to her and therefore, had spoken against. The 1st petitioner had also attempted to convince that the intimacy of RW2 with the respondent has caused their matrimonial relationship to sever.
14. The 1st petitioner got his elder son examined as PW2 and his version clearly supports her version as PW1. According to PW2, Mr.Praveen is only a good friend of his mother and the respondent is only maintaining some doubts about their relationship. According to him, his mother had never gone to a hotel with Mr.Praveen and had not booked a room and stayed there till evening as alleged by the respondent. To the respondent's suggestion to PW2 that Mr.Praveen is residing RP(FC) No. 107 of 2020 -:19:- with them at Bangalore, he answered in the negative. According to him, he had seen Mr.Praveen once but, has no acquaintance with him. According to PW1 also, Praveen is not staying with her at Bangalore, but often offers help to her in times of need. The respondent alone had spoken that after abandoning the job at Gulf, the 1st petitioner started her residence at Bangalore solely to continue her illicit relationship with Praveen.
15. From the discussion of the evidence on either side as above, this Court is convinced that the finding of the Family Court on the adulterous life of the 1st petitioner with Mr.Praveen is totally devoid of any basis. What is evinced from the evidence on record was that the respondent is maintaining some doubts about the relationship of the 1st petitioner and Mr.Praveen. True that respondent has only spoken about some instances of meeting together of the parties. But, that evidence is highly insufficient to hold that PW1 is living in adultery with Mr.Praveen.
16. RW2, the sister of the 1st petitioner, though had spoken during examination about the illicit relationship of the 1st petitioner with Mr.Praveen and also about the failure of the RP(FC) No. 107 of 2020 -:20:- efforts made to sever them ended on failure, amidst the cross examination RW2 has gone to the extent of stating that her knowledge about the illicit relationship of the 1 st petitioner and Mr.Praveen is not direct. PW2, the son of the 1 st petitioner has also outrightly denied the allegation of the respondent about the illicit relationship of his mother with Mr.Praveen. According to him, his father is entertaining some doubts about the friendship maintained by his mother and Mr.Praveen. Only when the respondent succeeds in proving that Mr.Praveen is an adulterer and the 1st petitioner is living with him in adultery, her entitlement for monthly maintenance can be declined.
17. In the case on hand the respondent failed to adduce satisfactory and sufficient evidence to establish that the 1 st petitioner is living in adultery with Mr.Praveen. Evenif the respondent's version is accepted in full, it cannot even be inferred that the 1st petitioner has committed adultery with Mr.Praveen . It is true that RW1 has spoken about two occasions of meeting together of PW1 and Mr.Praveen, which have been admitted even by the former. According to PW1, Mr.Praveen is only a good friend of her. RW2's version lost it's admissibility in evidence for the sole reason that it is not based on direct knowledge. RP(FC) No. 107 of 2020 -:21:-
18. The version of RW1 itself cannot form basis for the court to render a finding that PW1 is maintaining some illicit relationship with Mr.Praveen and is living in adultery with him. Independent evidence must also be adduced to support the same. Respondent's version as RW1 is highly insufficient to hold that PW1 has committed even an act of adultery with Mr.Praveen. It is even deficient to hold as instances of lapses from virtue.
19. True that it is held in Mercy's case supra that one or two lapses from virtue will not spell out that the woman is living in adultery. This court has also held in Benta Wilson V. Wilson [1988 (2) KLT 597] that the determination of the factum that a lady is living in adultery cannot be on a numerical basis, as was held in Mercy's case supra relied on by the learned counsel for the revision petitioner. The dictum in Benta Wilson's case supra was laid down by the Court in due consideration of the dictum in Mercy's case supra and it reads :
"2. xxx The determination cannot be on a numerical basis. It is not as if there is a limit beyond which it becomes adultery, and until then it is not. The question is whether the adulterous act complained of is a sporadic one, or whether it is a way of life with the woman. The decision RP(FC) No. 107 of 2020 -:22:- cited, did not also proceed on the basis, that the determinative factor is the numerical count. It is not the number of times when the offence is committed, that determines this. For that matter, it will be near impossible in a given fact situation to ascertain with any degree of precision the number of times, the act is committed."
20. Only a clarification is made by the court on the dictum in Mercy's case supra and therefore, the argument of the learned counsel for the respondent that the dictum in Mercy's case will not hold good is discarded. In Benta Wilson's case, strong and clear cut evidence of the lady living in adultery was there, since she was caught red-handed from a hotel by the police on an application filed by her husband. Therefore, the husband in that case has established by evidence that his wife is maintaining illicit relationship with one Mr.Jayachandran, who is a stranger. In the case on hand, the respondent husband failed to establish a single instance of lapse of his wife from virtue by adducing cogent and reliable evidence. The instances which have been referred to by the respondent/husband can only be taken as manifestations of doubts entertained by him on the relationship of his wife with Mr.Praveen. The reference of the instances in no way is sufficient to hold that the 1st petitioner had even committed a RP(FC) No. 107 of 2020 -:23:- single act of adultery. Such being the circumstance, it is difficult to hold that 1st petitioner is living in adultery and therefore is not entitled to get monthly maintenance allowance from the respondent.
21. It is settled by courts that the words 'living in adultery' denote a continuous course of conduct of immorality or lapses from virtue as distinguished from isolated instances of immorality. On the basis of one or two lapses of a lady from virtue much earlier to raising of the claim for monthly maintenance allowance, it could be said that she has committed adultery but, that evidence is highly insufficient to establish that the lady is living in adultery and therefore is not entitled to get maintenance under Section 125 Cr.P.C. The bar under Sub-Section (4) of Section 125 Cr.P.C would operate only in the case of a wife who has been established by cogent and reliable evidence by the respondent as living in adultery with a male, other than her husband.
22. In Sandha v. Narayanan [1999 KHC 159], the court had occasion to consider several cases wherein the words 'living in adultery' have been dealt with elaborately, and being convinced of the consistency in the views taken by RP(FC) No. 107 of 2020 -:24:- different courts held:
"15. It is clear from the consistent view taken by the various High Courts referred to above that the phrase 'living in adultery' used in S.125(4) of the present Cr.P.C, and in S.488(4) of the Cr.P.C. 1898 contemplates a continuous course of conduct on the part of the wife with the adulterer or paramour as the case may be and a single act of unchastity or a few lapses from virtue will not disentitle the wife from claiming maintenance from her husband under S.125 of the Cr.P.C."
23. In Nesamma v. Manuvel Hentry [1961 KHC 267] relied on by Sri.Asaf Ali, it was held:
"6. The principle that emerges from the decision discussed above is that an occasional lapse from virtue, or immoral conduct long before the time maintenance is applied for does not disentitle a wife for relief under S.488. I must say with respect that I find myself in complete agreement with the above principle. It is well recognised that the intention of the legislation is to prevent vagrancy which might result from throwing the estranged wife and her helpless children on their own. A husband might consider reprehensible the slightest lapse from moral rectitude on the part of his wife and he might justifiably shrink from maintaining conjugal relationship with such a woman or have her continue as the mistress of his house but if his resentment were to be carried to the extent of throwing his wife out on the streets to maintain herself by her own means and without any more help from him, it is more than probable that such a woman might turn to anti social activities in her struggle to keep body and soul together; it is this evil that is RP(FC) No. 107 of 2020 -:25:- sought to be prevented by the section. The provision that the wife is disentitled to maintenance if she is living in adultery means that the husband can withhold his aid only when her adulterous conduct has continued for some length of time suggesting thereby that she has found another albeit less honourable haven from the chill winds of penury."
24. Therefore, the evidence adduced by the respondent in the case on hand leaves no room even for a doubt to entertain that the 1st petitioner is living in adultery with Mr.Praveen. Involvement of a wife in lapses of virtue will not disqualify her from entitlement to claim maintenance under Section 125 Cr.P.C. The reason that distinguishes is that, in case of a deserted and neglected wife, in cases of living in adultery, the lady would be maintained by the adulterer and need not have to worry about her sustenance, as in the case of a lady remarried. A wife once chosen to lead a life in adultery with a man cannot claim that she is a destitute. She being in the company of the adulterer never have to live the life of a destitute. The object of Parliament behind the incorporation of Section 125 in the Code of Criminal Procedure being prevention of destitution and vagrancy, a wife who is not a destitute is totally disentitled to claim monthly maintenance. RP(FC) No. 107 of 2020 -:26:-
25. Before the Family Court it was brought out in evidence that Mr.Praveen is settled at Bangalore. Respondent as RW1 has stated that Mr.Praveen is living in the very same Flat where the 1st petitioner and her son are residing and the 1st petitioner as PW1 has stated that she used to call Mr.Praveen in case she needs any help and the latter used to help her. The Family Court has observed in the backdrop of the evidence tendered by the parties as above that, "The very fact that the 1st respondent is residing at Bangalore though she has no employment, support the case of the respondent that she choose to live in Bangalore only to continue her illicit relationship with Mr.Praveen. It has to be borne in mind that the 1st petitioner continued her relationship with Praveen though the respondent had specifically asked her to discontinue her relationship with Praveen."
26. The Family Court has also held on the basis of the evidence tendered by RW2 that the relationship of the 1 st petitioner and the respondent strained and the mediation took place at the behest of the 1st petitioner's eldest sister failed that, "The fact that there was a mediation talk would show that there was some sort of relationship between the 1 st petitioner and Mr.Praveen. Xx xx xx Being the sister of the RP(FC) No. 107 of 2020 -:27:- 1st petitioner I find it extremely difficult to disbelieve her evidence. It is not possible to expect a sister to depose falsehood against her own sister with respect to matrimonial matters."
After making observations as above, the Family Court has concluded in the impugned order that the 1st petitioner is living in adultery with Mr.Praveen and therefore as contemplated under sub-section (4) of Section 125 Cr.P.C, she is not entitled to get monthly maintenance from the respondent.
27. Without any hesitation, this Court holds that the observations made by the Family Court as above are totally baseless ones. The conclusion of the court on the illicit relationship of PW1 and Mr.Praveen is also devoid of any merits, as it was drawn only from some inferences. The Family Court lost sight of the law on the point settled by judicial pronouncements as discussed hereinabove.
28. The Family Court ought to have borne in mind that one or two lapses from virtue of a wife are insufficient to hold that the wife is living in adultery. Those may be sufficient to establish that the wife has committed adultery. Commission of adultery and living in adultery have it's own connotations and RP(FC) No. 107 of 2020 -:28:- each has to be established by cogent evidence. PW2, the son who is admittedly staying all along with the 1 st petitioner has said that the respondent was holding some unfounded doubts about the cordial relationship of his mother and Mr.Praveen. His specific version that he had seen Mr.Praveen but has no acquaintance with him itself is sufficient to treat the version of RW1 that the 1st petitioner and the respondent are residing in the same flat as false. This Court finds the version of PW2, being a cohabitant of PW1, more probable and believable than that of RW2, who is staying away and admittedly has no direct knowledge about the relationship.
29. The Family Court has blindly believed the interested version of RW1 unsupported by any independent evidence and drawn inferences on the unchastity of a woman. Undoubtedly the Family Court can be said to have gone wrong in drawing inferences of extreme amplitude against the morality of a woman without cogent basis.
30. The finding of the Family Court that the 1st petitioner and Mr.Praveen are living in adultery and therefore the 1 st petitioner is disentitled to get maintenance being erroneous, deserves to be set aside. The dictum in Bakulabai's case RP(FC) No. 107 of 2020 -:29:- supra relied on by the learned counsel for the respondent has no application in the case, as the view taken by the Family court is totally an erroneous one, based on appreciation of evidence in the wrong perspective.
In the result, R.P(F.C) is allowed. The impugned order is set aside to the extent it disallowed the claim of the 1 st petitioner. The monthly maintenance allowance fixed in favour of the 2nd petitioner by the impugned order is maintained. The allegation of the respondent that the 1 st petitioner is living in adultery with Mr.Praveen being unfounded is reversed. The 1st petitioner having been established from the evidence as unemployed and unable to maintain herself and the respondent having been established as having sufficient income and neglected to maintain her, there is every reason to allow the claim for maintenance under Section 125(1) Cr.P.C. Therefore, the 1st petitioner is found entitled to get monthly maintenance allowance from the respondent. The Family Court shall fix the amount payable as monthly maintenance allowance. For the sole purpose of fixation of monthly maintenance allowance, the M.C is remanded to Family Court, Thalassery. The Family Court shall permit the parties to RP(FC) No. 107 of 2020 -:30:- adduce further evidence only if the evidence already on record is found insufficient for determining the monthly income of the respondent and the monthly maintenance allowance payable. The M.C shall be disposed of within a period of two months from the date of receipt of a certified copy of this order.
Sd/-
MARY JOSEPH JUDGE ttb/MJL RP(FC) No. 107 of 2020 -:31:- APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE A1 CERTIFIED COPY OF THE ORDER OF THE FAMILY COURT, THALASSERY DATED 29TH JANUARY 2020 MADE IN MC NO.75/2019.
ANNEXURE A2 CERTIFIED COPY OF THE DEPOSITION OF THE 1ST PETITIONER, WHO WAS EXAMINED AS PW1.
ANNEXURE A3 CERTIFIED COPY OF THE DEPOSITION OF THE RESPONDENT WHO HAS BEEN EXAMINED AS RW1.
//TRUE COPY// P.S. TO JUDGE