Gauhati High Court
Page No.# 1/9 vs Smt. Jinu Deka on 21 January, 2025
Page No.# 1/9
GAHC010098382022
2025:GAU-AS:561
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./455/2022
HITESH DEKA @ MUSHAHARI
S/O SRI GOLAP DEKA
R/O VILL- NO. 2, BATABARI, MOUZA- BARSILAJHAR, P.S. ROWTA
DIST. UDALGURI, BTC, ASSAM,
PIN-784509
VERSUS
SMT. JINU DEKA
W/O SRI HITESH DEKA @ HITESH MUSHAHARI
R/O VILL- NO. 2, BATABARI, MOUZA- BARSILAJHAR, P.S. ROWTA
DIST. UDALGURI, BTC, ASSAM- 784509
Advocate for the Petitioner : MR. Y S MANNAN, MS N DEKARAJA,MR N J DUTTA
Advocate for the Respondent : MR M AHMED, N. CHOUDHURY,MR A. ALI
BEFORE
HON'BLE MR JUSTICE ARUN DEV CHOUDHURY
For the Petitioner : Mr. Y. S. Mannan, Advocate.
For the Respondent : None appears.
Date of Hearing : 21.01.2025
Date of Judgment : 21.01.2025
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JUDGMENT & ORDER (ORAL)
1. Heard Mr. Y. S. Mannan, learned counsel for the petitioner.
None appears for the respondent wife.
2. The present petition is filed by the petitioner assailing a
judgment dated 27.02.2020 passed by the learned Sessions Judge,
Udalguri in Criminal Revision No. 5/2017. By the aforesaid revisional order,
the revision preferred by the respondent against judgment dated 7.6.2017
passed by the learned SDJM, (S) Udalguri in MR Case No. 21/2015 was
modified by granting maintenance to the respondent wife, which was
originally denied by the learned Magistrate on the ground that she is living
in adultery, though maintenance in favour of minor child was granted by
the Trial Magistrate.
3. The respondent wife filed MR Case No. 21/2015 under Section
125 Cr.P.C., before the learned Sub Divisional Judicial Magistrate (S)
Udalguri, seeking maintenance for herself and for her minor daughter. In
the aforesaid proceeding, the petitioner as respondent filed written
statement. In his written statement, though he admitted the respondent
to be his wife and that he had fathered the minor daughter, however,
raised an issue that his wife is living in adultery with his own elder brother
and therefore, she is not entitled for any maintenance in terms of Section
125(4) of Cr.P.C.
4. During the course of proceeding, both the parties laid evidence.
To prove that his wife is living in adultery, the husband adduced evidence
of his elder brother's wife and himself and also produced some documents
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relating to a village Bichar to project that these two persons were living in
adulterous relation and that they admitted such adulterous relation in the
said Bichar.
5. The learned trial court though granted maintenance in favour of
the minor daughter, however, upheld the contention of the husband of
such adultery of his wife on the following counts:
I. That the respondent wife in her evidence-in-affidavit did
not deny the allegation of adultery made in the written statement by
the husband.
II. According to the learned trial court, though a photocopy of
the proposal in the village mel was annexed as Annexure-B in the
written statement, such fact has not been denied by the wife in her
examination-in-chief and as per the said document which is a
minutes of meeting, both the wife and the brother of the husband
admitted their relation.
III. Though there is no specific allegation, since when both of
them started the aforesaid relationship and there is no evidence
adduced by the husband to prove that both of them maintained the
relationship prior to the year 2015, however, as the first party i.e.
wife did not deny such allegation made in the written statement, in
her evidence-in-affidavit, coupled with the evidence of DW-6, the
wife of the person with whom the petitioner's wife was maintaining
an adulterous relation, it was held that the wife is not entitled for
maintenance in terms of section 125(4) of the Cr.P.C.
6. Such decision was reversed by the Revisional Court in Criminal
Revision No. 5/2017 preferred by the wife, relying on the decisions of
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Sau. Chanda P. Waded -Vs- Preetam G. Waded and Another
reported in 2002 Crl.LJ 1397 (Bom), Smt. Rachita Rout -Vs-
Basanta Kumar Rout reported in 1987 Crl.L.J. 655 and Baishnab
Charan Jena -Vs- Ritarani Jena reported in 1993 Crl.L.J 239, and
held that merely proving one or more instances of lapses in the character
of the wife, is not sufficient to absolve the husband from his liability to
pay maintenance and that such singular instance would not be sufficient
to deny maintenance and such adultery should be continuous.
Accordingly, it was held that the respondent wife shall also be entitled for
maintenance along with her minor daughter and accordingly, the revision
was allowed.
7. In the aforesaid backdrop, Mr. Y. S. Mannan, the leaned counsel,
argues that the learned Revisional Court had committed serious error of
law. According to Mr. Mannan, learned counsel, to deny the benefit of
maintenance, it is not always necessary to prove continuous adulterous
relation and one singular incident will be sufficient to do so.
8. Mr. Mannan, learned counsel has tried to impress upon this Court
that even under Section 13(1)(i) of the Hindu Marriage Act, 1955
(hereinafter referred to as Act, 1955), voluntary sexual intercourse,
with others itself is a ground of divorce and under Section 25 of the Act,
1955, an unchaste women is not entitled for any maintenance. Mr.
Mannan, learned counsel further contends that under Section 18 (3) of
Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to
as Act, 1956), a Hindu wife is not entitled to separate residence and
maintenance, if she is unchaste and therefore, when the parties are
Hindus, Section 125(4) Cr.P.C. cannot be read in isolation inasmuch as in
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the personal law, it is not mandated that the adulterous relations should
be a continuous one. Therefore, according to Mr. Mannan, learned
counsel, provision of section 125(4) Cr.P.C., cannot be interpreted in
isolation of the aforesaid provisions of personal law. It is also contended
by Mr. Manna, learned counsel that Section 4 of the Act, 1955, provides
that the said Act shall have an overriding effect upon all other law
including Section 125(4) Cr.P.C.
9. I have given anxious consideration to the submission advanced by
Mr. Mannan, learned counsel for the petitioner. Also perused the materials
available on record.
10. It is by now well settled that standard of proof of marriage and /
or desertion and / or adulterous relation in a proceeding under Section
125 is not as strict as is required in a trial of an offence in a criminal case.
It is equally well settled that an order passed in an application under
Section 125 Cr.P.C. does not really determine the rights and obligations of
the parties inasmuch as the Section 125 Cr.P.C. is enacted with a view to
provide a summary remedy to neglected wife/children and parents to
obtain maintenance.
11. In the case in hand, the only point raised is that the wife was
living in an adulterous relation and therefore, she is not entitled for
maintenance in view of provision of Section 125(4) Cr.P.C.
12. The findings of the learned trial court that though there is no proof
whether they continued to live in an adulterous relation, however, on the
failure of the wife to rebut the evidence laid by the husband, it was held
that she was living in an adulterous relation and accordingly, benefit of
maintenance was denied to her. In the considered opinion of this Court
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such view is not based on sound principle of standard of proof. The
learned Magistrate had put the burden on the wife and accepted the
contention of the husband for the reason that the wife did not deny it in
her evidence on affidavit (examination-in-chief) and totally ignored that it
is the husband who had asserted adultery of his wife and he is to prove
such assertion. It is the further considered opinion of this court, such view
and determination has rightly been interfered by the learned Sessions
judge.
13. The ratios relied on by the learned Session Judge clearly settle the
propositions of law that in order to extract the benefit of the provision of
Section 125(4) Cr.P.C., the husband has to establish with definite evidence
that the wife has been living in adultery, and one or occasion of acts of
adultery committed in isolation would not amount to "living in adultery" as
required under Section 125(4) Cr.P.C.
14. Such concept of "living in adultery" has also been dealt and
defined by various High Courts in their judgments, some of them are as
follows:- Pandurang Bakru Nathe -Vs- Leela Pandurang Nathe
reported in 1997 SCC Online Bom 264, Sandha -Vs- Narayanan
reported in 1999 SCC Online Ker 64, Ashok -Vs- Anita reported in
2011 SCC Online MP 2249 and Sukhdev Pakharwal -Vs- Rekha
Okhle reported in 2018 SCC Online MP 1687.
15. For sake of brevity, this court would like to record some of the
findings in the following paragraphs:-
i. (1997 SCC Online Bom) (supra) "Living in adultery‟ is
living together as husband and wife and exercising sexual rights and
duties implied by such relation when legally created. Proof of
occasional acts of illicit intercourse may fall short of what in intended
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by the expression „living in adultery‟. It suggests a man and the wife
of another living continually as husband and wife. An adulterous
intercourse is a condition contemplating repetition of extra marital
relationship when opportunity offers itself. It is a condition of
cohabitation in contradistinction to occasional acts. The wife forfeits
her right to be maintained on proof of repeated adulterous meetings."
ii. (1999 SCC Online Ker 64) (supra). 8. The phrase
„living in adultery‟ used in Sec. 488(4) of the Cr. P.C. 1898 which is
akin to Sec. 125(4) of the present Cr. P.C. has been considered by
various High Courts in India and have taken the uniform view that
living in adultery denotes a continuous course of conduct or living in
the state of quasi permanent union with the adulteror. In the decision
in Ma Mya Khin v. N.L. Godenho (AIR 1936 Rang. 446) the Rangoon
High Court has observed as follows: "Emphasis must be laid upon the
words „living in adultery‟. The words used are not „committed
adultery‟, and there is clearly a great distinction between „committing
adultery‟ and „living in adultery‟ denotes a continuous course of
conduct and not isolated acts of immorality. One or two lapses from
virtue would be acts of adultery but would be quite insufficient to
show that the woman was „living in adultery‟, which means, so far as
I understand the expression, that she must be living in a state of
quasi permanent union with the man with whom she is committing
adultery."
iii. (2011 SCC Online MP 2249) (supra) "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-entitle 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
adulterious 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. P.C. is not „if she commits adultery‟ but „if she is
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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‟."
iv. (2018 SCC Online MP 1687) (supra) "17. It is settled
law that phrase "living in adultery" applies to a continuous adulterous
conduct and not a single or occasional lapse from virtue. Solitary Act
of adultery or isolated lapse of wife will not disentitle her from
claiming maintenance. Unless it is found that at the relevant time, the
wife was actually living in adultery, she is not disentitled to claim
maintenance. The burden of proof of such adulterous conduct on the
part of the wife, is upon the husband."
16. This Court is in total agreement with the aforesaid propositions of
law inasmuch as the learned Sessions Judge has also followed such
settled propositions of law. The fact also remains that admittedly, there
was no proof that the respondent wife was "living in adultery" even if the
determination made by the learned Magistrate is accepted.
17. That being the position, the arguments advanced by Mr. Mannan,
learned counsel as regards single incident of adulterous relation stands
negated.
18. Now coming to argument of Mr. Mannan, learned counsel as
regards provision of Section 13 of the Act, 1955, as well as Section 18 of
the Act, 1956 and the overriding effect provided under Section 4 of Act,
1955, this Court is of the view that the provision of section 13 of the Act,
1955 is relatable to a case of divorce and so far the provision of section of
18 of the Act, 1956, same is also under the provision of a personal law. As
recorded hereinabove the object of Section 125 Cr.P.C. is all together
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different. Therefore, the analogy under the aforesaid personal law, in the
considered opinion of this court, cannot be made applicable while deciding
a proceeding under Section 125 Cr.P.C. The overriding effect under Section
4 of the Act, 1955,is relatable to any text or rule or interpretation of
Hindu law or any custom or usage and therefore, same cannot be read
into the provision of the 125 Cr.P.C which is a secular provision and not
part of Hindu Personal Law. Accordingly, the argument on this point of Mr.
Mannan, learned counsel also donot find any favour from this court.
19. In view of the aforesaid discussion and reasons, this criminal petition
stands dismissed. Interim order, if any, passed earlier stands vacated.
20. The LCR be returned back forthwith.
JUDGE
Comparing Assistant
