K. Veeriah vs Muthulakshmi

M. Karpagavinayagam, J.—This revision is preferred by K. Veeriah, the petitioner herein/husband, as against the order passed in Crl. R.P.

No. 29/1996 on the file of the Principal Sessions Judge, Mudurai allowing in part, while modifying the order passed in the application for

maintenance in M.C. No. 1/95 on the file of the Judicial Magistrate, Melur.

Muthulakshmi, the first respondent herein/wife, filed an application claiming for maintenance from her husband, the petitioner herein, for herself

and for her minor children respondents 2 to 4. The lower Court passed an award of maintenance only in favour of the respondent-4 minor Sudha

directing the petitioner to pay a sum of Rs. 200/- per month and disallowed the claim of maintenance for the first respondent, the wife, holding that

she was not entitled to maintenance as she was living in adultery and disallowed the claim for the respondents 2 and 3, the minor children, on the

ground that those children are living with the petitioner herein.

However, the first respondent challenging the order of disallowing her claim for maintenance and seeking for the enhancement of the

maintenance amount to the fourth respondent, minor daughter, filed the revision before the learned Sessions Court at Madurai. On hearing the

parties, the learned Sessions Judge held that the wife, the first respondent herein, was entitled to maintenance of Rs. 400/- per month and

enhanced the maintenance granted in favour of the fourth respondent from Rs. 200/- to Rs. 250/- per month from the date of the application filed

before the lower Court in M.C. No. 1/95. This order is under challenge by the husband, the petitioner herein.

Mr. Subbaiah, the learned Counsel appearing for the petitioner, would challenge the impugned judgment by making the following two

submissions :

(1) The learned Sessions Judge in a revision has no jurisdiction to reappraise or to appreciate the evidence and reverse the well considered

judgment of the Trial Court, in the absence of any reason to hold that the finding by the Trial Court was perverse or acted on no evidence.

(2) The witnesses R.Ws. 1 to 4 through whom Ex. D-1 was filed on behalf of the husband, have established through their evidence that the first

respondent/wife was not entitled to maintenance as she was living in adultery u/s 125(4) Cr.P.C. The Trial Court had believed their version and

held that the wife was not entitled to the maintenance. The reasonings given by the Trial Court to believe the evidence adduced by the husband

cannot be said to be illegal. Moreover, the Revisional Court cannot supply its own reason substituting the findings of the Trial Court without

considering the validity of those reasonings.

In order to support the abovesaid submissions, the learned Counsel for the petitioner would cite the authority reported in Chinnazhagi and

Another Vs. Chellappan, .

In reply to the above submissions, Mr. Krishnamoorthy, the learned Counsel appearing for the respondents, would submit that the learned

Sessions Judge is right in passing the impugned order, as the finding given by the Trial Court was not in consonance with the law.

In the light of the above submissions, let me now go into the merits of the rival contentions.

The wife, the first respondent herein, filed an application claiming maintenance. In the said petition, she would state that 13 years ago, their

marriage was solemnised and out of the wedlock, the children, respondents 2 to 4, were born. During the course of time, the wife was tortured

and harassed by the petitioner/husband demanding dowry and ultimately, the wife and children were driven out of the matrimonial home. On

3.2.1995, the husband contracted a second marriage with one Muthu. Therefore, the husband, who is earning well through his business, has to pay

maintenance to the wife and children.

This claim was contested on the ground that the wife had an illicit connection with one Ramu immediately after the birth of the first son. She was

warned for this illegal act and even thereafter, they were living together. Thereupon, two children were born. Again she was found to have illegal

connection with one Chidambaram. Then Panchayat was conducted. In pursuance of the Panchayat decision, both had agreed for divorce and got

separated.

On the side of the wife, P. W. 1 wife, P. W. 2 father of P. W. 1, and P. W. 3 were examined. On the side of the husband, the husband and

three others were examined as R.Ws. 1 to 4. The Panchayat muchalika was marked as Ex. D-1.

The Trial Court, on consideration of the entire materials though found that the Panchayat muchalika Ex. D-1 was not a genuine one, since

admittedly the signature of the wife was not tallied with the signature found in the muchalika, but held that the wife was not entitled to maintenance,

as there are materials to show that she was living in adultery, which had not been rebutted by the wife.

As mentioned above, it is relevant to note that the Trial Court itself found that the alleged divorce by virtue of the Muchalika Ex. D-1 was not

established. The learned Sessions Judge has disbelieved the evidence of R.Ws. 1 to 4 with reference to the materials relating to the aspect of the

wife having illicit connection with others.

The learned Counsel for the petitioner, on the strength of the decision 1997 (2) Mad. WN1 (supra), would contend that the Revisional Court

cannot disturb the factual findings rendered by the Trial Court. It is true that it is a cardinal principle of law that in revision, the Revisional Court will

not interfere with the order of the Court below, unless there are some compelling reasons for doing so, such as, where the judgment or order of the

Court below is vitiated by perversity or gross illegality.

In such a situation, the learned Sessions Judge, according to the Counsel for the petitioner, ought not to have set aside the order of the Trial

Court, especially when there is no finding in the order passed by the learned Sessions Judge that the conclusion arrived at by the Trial Court was

perverse.

The grievance of the learned Counsel for the petitioner is that the Sessions Court without looking into the order of the Trial Court, merely went

to the evidence and came to its own conclusion after appreciation of the materials produced by the witnesses, which is not permissible under law,

while dealing with the revision.

However, on perusal of the impugned order passed by the learned Sessions Judge in the revision, I find that the learned Sessions Judge has

gone into the reasonings given by the Trial Court. The relevant observation is this :

It is true that the Revisional Court cannot re-appreciate the evidence which was already appreciated by the Trial Court. But, in my view, the

appreciation made by the Trial Court, was not in terms of the meaning of the words ""living in adultery"" as contemplated u/s 125(4), Criminal

Procedure Code. In that view of the matter, the learned Sessions Judge is perfectly correct in holding that the conclusion arrived at by the Trial

Court that the wife was ""living in adultery"" is not correct.

In order to show that the decision arrived at by the learned Sessions Judge, with reference to the evidence relating to the wife ""living in

adultery"", has been correctly taken, it is quite appropriate to refer to some of the decisions rendered by this Court as well as by the High Court.

(1) Pattayee Ammal Vs. Manickam Gounder and Another, ;

(2) Papammal Vs. Dharman, ;

(3) S.S. Manickam v. Arputha Bhavani Rajam, 1979 Mad. LW 143;

(4) S. Gulam Mohindeen v. Rasheeda Fathima Niga Begam, 1981 TLNJ 7;

(5) Mathein v. Maung Myakhin, AIR 1937 Rang 67.

The essence of the judicial pronouncements is to the effect that when the husband challenges the claim for maintenance of his wife alleging that

his wife is ""living in adultery"", the husband should prove that there is continued adulterous conduct. The phrase living in adultery'' refers to course of

guilty conduct and not a single lapse from virtue.

The term ""adultery"" is to be understood in the light of the social ideas of the community as being a serious breach of the matrimonial tie. ""Living

in adultery"" -- mere friendship with a man does not amount to adultery within the meaning of Section 125(4), Criminal Procedure Code. ""Living in

adultery"" means the following of a course of continuous adulterous conduct.

While determining the factum of ""living in adultery"" the Court must consider evidence on record to ascertain as to whether the wife was living in

quasi-permanent union with a man with whom she was allegedly committing adultery. It is for the husband to prove that the wife is continuously

committing violation of the marriage bed, indulging in adulterous life, by living in quasi permanent union with her paramour. In other words, ""living in

adultery"" means an outright adulterous conduct where the wife lives in a quasi permanent union with a man with whom she is committing adultery,

''shortly'' before or after the petition for maintenance.

It is only when the husband proves satisfactorily beyond reasonable doubt that his wife was living in adultery, she will not be entitled to

maintenance and not otherwise. When an allegation of adultery is made against the wife, the Court is bound to enquire into her conduct. In the said

enquiry, the husband has to begin his case and the wife must be given an opportunity for adducing evidence to rebut the allegation of ""living in

adultery"".

The words ""living in adultery"" are merely indicative of the principle that the single or occasional lapse from virtue is not a sufficient reason for

refusing maintenance. To reiterate the continued adulterous conduct is what is meant by ""living in adultery"".

The question, therefore, for the Court to decide is whether there had been such continued adulterous conduct on the part of the wife at or

about the time of the application. The continuous adulterous conduct on the part of the woman at or about the time of the application would mean

such conduct shortly before or shortly after the application was made, interpreting the word ""shortly"" in a reasonable manner. What is reasonable

would depend upon the facts and circumstances of each case.

The words ""living in adultery"" do not necessarily mean that the husband is to prove that his wife was living in adultery on the date of the

application itself. The word must be interpreted to mean that it is enough for the husband to prove that the wife has been continuously ""living in

adultery"" shortly before the application was made.

No doubt, the term ''adultery'' is understood in the light of the social idea of the community, namely, even a single instance, is a serious breach

of the matrimonial tie, since such conduct is against the moral standards expected of each of the spouses.

In this context, it is useful to refer to Section 125(4) of the Criminal Procedure Code:

No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery.

The words ""if she is living in adultery"" would imply in the plain and ordinary meaning that the wife must be living in adultery at the time when the

application for maintenance was filed.

As pointed out by Krishna Iyer, J. in Bai Tahira Vs. Ali Hussain Fidaalli Chothia and Another, , while dealing with a case of maintenance u/s

125, Criminal Procedure Code, the meaning of the words contained in Section 124(4), Criminal Procedure Code cannot be pendantic but

purposeful, as the law is dynamic.

In the light of the above guidelines, it need not be for the husband always to prove that on the date of the application, the wife was ''living in

adultery''. But, it is certain that there must be satisfactory proof that the wife was living in adultery shortly before the filing of the application.

Bearing these principles in mind, let me now go into the reasonings given by the learned Sessions Judge to hold that the wife was entitled to

maintenance.

As pointed out by the learned Sessions Judge, after the birth of the first child, the wife was stated to have illicit connection with one Ramu and

there was some Panchayat. In the said Panchayat, the wife is said to have been warned. Thereupon, they lived together and other two children

were born to them.

It is the case of the husband that she was caught red-handed, when she had connection with one Kangan. However, the evidence of R.W. 2,

examined on the side of the husband with regard to the Ramu episode, there was a Panchayat and before the Panchayat, it was not established that

she had any illegal connection with said Ramu. Admittedly, the alleged connection with Ramu was 11 years earlier. Regarding the connection with

one Kangan, it is stated by R.W. 3 that there was a Panchayat 3 years before.

Thus, none of the witnesses examined on the side of the husband would speak about the alleged illicit connection of the wife with any other

man shortly before the filing of the application.

The application for maintenance was filed on 16.3.1995. In the said application, it was alleged by the wife that she and her children are living

with her parents. The evidence given by P.W. 1 to the effect that they were living with the parents was corroborated by the evidence of her father

P.W. 2 and another witness P.W. 3. This aspect of the evidence has not been challenged.

So, under these circumstances, it can be very well concluded that it was not established by the husband that she was living in adultery with

some other man shortly before the filing of the application.

Moreover, the learned Sessions Judge has been given cogent reasons to disbelieve the evidence of R.Ws. 1 to 4, even with regard to the

alleged illicit connection with some other person, that too, long prior to the filing of the application.

In this context, it is significant to note that the scope and object of the provision has been expressed clearly by the Law Commission in its 41st

Report thus :

In Section 488(4) the words living in adultery'' have been almost uniformly interpreted as indicating an adulterous course of life as distinguished

from a single lapse from virtue. It has been suggested that a single act of adultery should be enough to disentitle wife to maintenance. We are

unable to accept the suggestion. Hardships are bound to arise if the wife is totally debarred from the remedy under this section because of a single

lapse from virtue. Further, to deprive her of maintenance for an occasional lapse may force her to live sinful life and give her no chance to redeem

herself.

In view of the above observation in Law Commission Report, the husband shall establish by unimpeachable and cogent evidence that his wife

at or about the time of the filing of the maintenance petition has been leading continued adulterous life. Admittedly, those materials are not available

in this case.

In these circumstances, I am of the view that the first respondent/wife is entitled to maintenance of Rs. 400/- per month as held by the learned

Sessions Judge. In fact, there is no dispute with regard to the fact that the 2nd and 3rd respondents are now living with the petitioner/husband. So

the 4th respondent, who is now living with the first respondent/wife, is entitled to a maintenance of Rs. 250/- per month, as held in the impugned

order.

In view of the above legal position, I concur with the view taken by the learned Sessions Judge and dismiss the revision, as devoid of merits.