Rupa.C vs Puthalath Anil Kumar
2021 Latest Caselaw 1183 Ker

            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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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