Babulal vs Munnibai

K.L. Shrivastava, J.—This revision petition is directed against the order dated 14-5-1984 passed by the Additional Sessions Judge, Rajgarh (Biaora) in Criminal Revision No. 1 of 1983 whereby the order dated 14-5-82 passed by the Chief Judicial Magistrate Rajgarh in Misc. Criminal Case No. 25 of 1982 allowing the petitioner''s application under sec 125(5) of the Code of Criminal Procedure, 1973 (for short ''the Code'') filed for cancellation of the order under sub-section (1) of section 125 on the ground that the non-applicant was living in adultery, has been set aside.

Circumstances giving rise to this petition are these. The present petitioner Babulal is the husband of the non-applicant Munnibai. On an application under sec. 125(1) of the Code filed by the non applicant, order against the petitioner for making a monthly allowance of S. 75/- for her maintenance was passed vide M. Cr. C. No. 19/80 and the said order was confirmed m revision (vide Cr. Rev. 6/81) decided on 16 4-81.

Subsequently the petitioner having come to know that the non-applicant had delivered a child or had resorted to abortion, filed an application dt. 23-2-82 u/s 125(5) of the Code wrongly stating it as an u/s 125(4) before the Chief Judicial Magistrate, Rajgarh for cancellation of the order u/s 125(1) of the Code.

The non applicant was examined by Dr. Mrs. Simlot (A. W 3) on 9-3-82. She found that the non-applicant had delivered a child before four weeks. The learned Chief Judicial Magistrate in view of the statement made by the Lady doctor allowed the husband''s application, and cancelled the order passed u/s 125(1) of the Code. The non-applicant preferred by the impugned order the Additional Sessions Judge allowed it and set aside the order passed by the Chief judicial Magistrate.

In the repealed Code of Criminal Procedure 1898 the corresponding provision was incorporated in section 488 (5).

The petitioner aggrieved by the impugned order setting aside the order of cancellation of the order passed against him for making a monthly allowance for the maintenance of the non-applicant has come up in this revision. According to him in passing the impugned order the learned Additional Sessions Judge failed to bear in mind the limited scope of revisional jurisdiction.

The point for consideration is whether the revision petition deserves to be allowed.

In the instant case, the petitioner had filed on 23-2-82 the application for cancellation of the order u/s 125(1) of the Code on the ground that the non-applicant is living away from him from 1980 and for the past six months she is not living in her usual place of residence but is living with the Administrative Officer of the District Health Department and has become pregnant.

The non-applicant in her reply controverted the allegations and stated that due to nan-payment of monthly allowance for maintenance by the petitioner she has to work at the residence of the Officer.

The question is whether the revision petition deserves to be allowed. The applicant as A. W. 1 has stated the he is in service at lndore and only occasionally visits Rajgarh. According to him he learnt from others that the non applicant resides at the residence of the officer. The testimony of Sheikh Mohammad (A. W. 2) is that the non-applicant used to reside at the residence of the Administrative Officer during night and he learnt from his wife that the non applicant on having a pregnancy of four-five months had left Rajgarh.

In her deposition dated 10-11-82 the non-applicant had denied that she had ever become pregnant 5 to 7 months beck. It is not her case that applicant had access to her and she was pregnant by him. Harish Sharma the the Administrative Officer, Health Department, Rajgarh had stated that he had no illegal connection with the non-applicant who comes to his residence in the morning and evening for doing house-hold work.

Learned Counsel for the petitioner contended that no direct evidence of adulterous life is readily available and relying on the decision in Rattibai''s case 1966 JLJ SN 17 he urged that the expression ''living in adultery'' has to be construed in the light of the circumstances of each case. A wife giving birth to a child from another person cannot be permitted to invoke section 125 of the Code though she may get her right established in Civil Court. In the decision it has been pointed out that the expression ''living in adultery'' is to be interpreted in the light of the circumstances of each particular case and according to the nature of the inquiry whether it was for grant of maintenance or whether it was for cancellation of maintenance already granted According to the decision even single act of adultery might be sufficient for refusing maintenance applied for in the summary proceedings initiated by the wife. It was further observed therein that a wife living separate from her husband for about 9 to 10 years when she gives birth to an illegitimate child it may reasonably be inferred for the purposes of proceedings u/s 125 of the Code that she might have gone wrong in the past as well, though it did not result in pregnancy. According to the decision otherwise, the husband would have to wait till she gives birth 4 to 5 illegitimate children in order to urge successfully that the wife is living in adultery,

Learned Counsel for the non-applicant placed reliance on the decision in Ram Razia v. Jagannath 1970 JLJ SN 55 and contends that therein it was held that solitary lapse on the part of wife was not sufficient for a finding that she was living in adultery for the purpose of sub-section 5 of section 488 of the repealed Code of Criminal Procedure 1898. The case relates to a wife who had an order for maintenance in her favour and had later given birth to an illegitimate child. In this case, the decision in Rattibai''s case (supra) has been distinguished.

In the decision in State of Madhya Pradesh and another Vs. Mst. Somti and another, it has been held that proceedings u/s 488 pro\\ide a summary remedy. According to this decision presumption of legitimacy u/s 112 of the Evidence Act is rebuttable by evidence of non-excess which need not be proved to the extent of impossibility. The following excerpt under the head note (1) from paragraphs 7 and 12 may profitably be reproduced :

Section 488 Cr P. C. provides summary remedy to ensure some supply of food, clothing and shelter to a wife and children and the object of the proceeding is to prevent possible vagrancy of the woman by compelling her husband to support her. But at the same time, the intention of the law is equally clear that woman who lives in adultery is disentitled to maintenance. In other words, the summary remedy u/s 488, Criminal Procedure Code, is available only to a faithful wife. If she conceives an illegitimate child, she disentitles herself to maintenance so far as section 488 CR.P. C, is concerned. It is open to her to take recourse to a civil remedy and get a decree for maintenance. (Para 7)

The expression ''living in adultery'' in section 488 certainly excludes the case of a single lapse. But there is no warrant for going to the extent of considering it as to mean that the woman must be in a permanent or quasi-permanent union with another man, not her husband. AH that the expression connotes is that there should be a course of conduct for some period during which she has deflected from the path of virtue. An individual lapse and the life of a common prostitute are the two extremes in between which are gradations of increasing unchastity. It is always a question of fact to be determined from the circumstance of each case, whether infidelity depended upon a life of adultery. (Para 12)

In the summary inquiry under Chapter IX of the Code entitled ''order for maintenance of wives, children and parents'' technicalities of all sorts have to be eschewed and just conclusion has to be reached. The proceedings under chapter do not fairly determine the statute and the rights of the parties. They have the object of providing speedy relief to prevent vagrancy.

As already seen, the non-applicant is not a reliable witness. There is medical evidence as to her having become pregnant. Her case is not of pregnancy by the applicant or even of a solitary lapse on her part resulting in pregnancy. On a cumulative consideration, the totality of the facts and the circumstances of the case, I am of the view that the material placed by the petitioner was sufficient for the conclusion in the summary inquiry that the non-applicant was living in adultery so as to entitle him to an order cancelling the earlier order u/s 125(1) of the Code passed against him for making monthly allowance for the maintenance to her. I find that the learned Additional Sessions Judge transgressed the limit of his re visional jurisdiction in setting aside the order passed by the learned Chief Judicial Magistrate which was founded on appreciation of the evidence on record.

In the result, the revision petition succeeds and is allowed. The impugned order passed by the learned Additional Sessions Judge is set aside and the one passed by the learned Chief Judicial Magistrate is restored.