P. Bayamma vs Peteti Mariyadass and Another

In this application filed under S. 482, Cr.P.C., the petitioner-wife assails the revisional order dated 22-7-1997 passed by the II Addl. Sessions Judge, Guntur in Crl. Revision No. 50/96 setting aside the order passed in M.C. No. 2/95 on the file of the II Addl. Munsif Magistrate, Tenali granting monthly maintenance at Rs. 300/- to her.

The facts, in brief, are as follows :

(i) The petitioner is the legally wedded wife of the 1st respondent herein (hereinafter referred as respondent). Their marriage was solemnised about 25 years ago. They begot 3 daughters after their wed-lock and they are Usha Rani (RW-2), Prameela (PW-4) and Srilatha RW-3). They performed their marriages and they are living with their husbands at Hyderabad. The petitioner filed M.C. No. 2/95 under S. 125, Cr.P.C. against her husband, the respondent herein seeking monthly maintenance at the rate of Rs. 500/-. The reasons alleged for her separate maintenance are :

(1) The respondent used to beat her severely after consuming alcohol and while she was bed-ridden, after undergoing major operation in August, 1993, the respondent failed to provide any medical aid and food to her.

(2) The respondent brought her concubine by name Pamulamma and used to have sexual intercourse with her in her presence and kept her in his house. (3) On 5-1-1994, the respondent with the assistance of his concubine, tried to squeeze her neck and that somehow saved herself and left for her brother''s house. The respondent resisted the claim of the petitioner. He admitted the marital relationship with the petitioner and birth of 3 daughters and denied all other allegations. It is his positive plea that the petitioner herself deserted his company and that she is leading adulterous life with her second son-in-law at Hyderabad.

(ii) To prove their respective contentions, the petitioner examined PWs. 1 to 4 and marked Exs. P-1 and P-2. On behalf of the respondent, RWs. 1 to 3 were examined and no documents were marked. The petitioner got herself examined as PW-1. PWs. 2 and 3 are the brothers of the petitioner and PW-4 is the 2nd daughter of the petitioner and the respondent. The respondent got himself examined as RW-1. The 1st and 3rd daughters of the petitioner and the respondent were examined as RWs. 2 and 3 respectively. Ex. P-1 is the office copy of the registered notice issued to the respondent on behalf of the petitioner. Ex. P-2 is the returned registered cover addressed to the respondent.

(iii) The trial Court in para 12 of its order held thus :

"the petitioner failed to bring out a prima facie case on the said aspect of neglect and refusal. Similarly, the respondent failed to prove the adultery of PW-1 and he is taking such a plea in the counter itself is a valid ground to justify PW-1 to live away from him and his offer to take care of PW-1 cannot be considered in the light of his said plea of adultery. Therefore, the said adultery plea itself is a ground of cruelty and the petitioner is entitled to live separately from the respondent on that ground alone in which case, the respondent is bound to pay maintenance".

As regards the self-sufficiency of the petitioner to maintain herself, the trial Court held in para 10 on point No. 4 that PW-1 is not able to maintain herself and is not self-sufficient. As regards the plea of the respondent that the petitioner is living in adultery, the trial Court held in para 11 on point No. 5 that the said plea of the respondent appears to be a false plea taken to evade maintenance and cannot be believed. Therefore, the trial Court, considering the salary of the respondent at Rs. 2,500/- per month working as Gangman in Roads and Buildings Department, granted maintenance to the petitioner at the rate of Rs. 300/- per month. Aggrieved of that order, the husband preferred Criminal Revision No. 50/96 before the Sessions Judge, Guntur. On reappreciation of the entire evidence on record, the learned Addl. Sessions Judge, Guntur allowed the revision and set aside the order of maintenance passed by the trial Court, the petitioner-wife has come up with this application to quash that order of the learned II Addl. Sessions Judge, Guntur.

The learned II Addl. Sessions Judge, Guntur relied on the testimony of the husband that the petitioner has voluntarily deserted him and is staying with her second daughter and her son-in-law at Hyderabad and that she refused to join him when he called her by himself and mediators. The learned Addl. Sessions Judge also relied upon the testimony of RWs. 2 and 3 who are the first and third daughters of the petitioner and the respondent that their mother having developed illicit contacts refused to join their father.

The only point urged by the learned counsel for the petitioner is that the learned Addl. Sessions Judge seems to have been carried away by the evidence of RWs. 2 and 3 who are no other than the eldest and the youngest daughters of the petitioner and the respondent and that there is no reason for both of them (RWs. 2 and 3) to depose that their mother i.e., the petitioner herein is living in adultery having illicit contacts with her own second son-in-law and that the learned Addl. Sessions Judge failed to evaluate their evidence in the light of other circumstances in this case. The learned counsel for the petitioner further contends that the said allegation of adultery has been disputed by PW-4 who is her second daughter, with whose husband the petitioner is said to have illicit contacts. The learned counsel for the respondent, on the other hand, vehemently contends that petitioner''s own daughters have come forward and deposed about the adulterous life of the petitioner with her own second son-in-law and there is no reason to disbelieve their testimony and that no daughter will come forward and attribute unchastity to her mother unless the fact is true. The learned counsel for the respondent thus contends that the petitioner is not entitled for maintenance under sub-clause (iv) of S. 125, Cr.P.C. as she is living in adultery.

The point for consideration is whether the impugned order dated 22-7-1997 in Crl. Revision No. 50/96 on the file of the II Addl. Sessions Judge, Guntur is liable to be quashed ?

There is no dispute regarding the relationship between the parties. The petitioner is the legally wedded wife of the respondent and they begot three female children and all the three are married, and they have been living with their husbands at Hyderabad. It is also not disputed that the respondent is working as Gangman in Roads and Buildings Department and getting a monthly salary of more than Rs. 2,500/-. It is also admitted that the petitioner underwent a major operation of removal of uterus at Tenali and three months thereafter, she was taken to Hyderabad by her three daughters for taking rest.

The petitioner filed the petition under S. 125, Cr.P.C. Aclaiming maintenance against her husband on the ground that she was ill-treated and driven out of the house by him and that the respondent neglected to maintain her. Under S. 125(1), Cr.P.C. if the husband having sufficient means, neglects or refuses to maintain his wife, who is unable to maintain herself, a Magistrate of the First Class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife at such monthly rate not exceeding Rs. 500/- in the whole. In order to satisfy the ingredients of this Section, the first and foremost requirement that a wife has to prove is that her husband neglected or refused to maintain her and she is unable to maintain herself. But, as per S. 125(4), Cr.P.C., a wife is not entitled to receive such an allowance from her husband if she is living in adultery; or if she refuses to live with him without any sufficient cause, or if they are living separately with mutual consent.

Admittedly, the petitioner and the respondent have been living separately, but it was not by mutual consent which deprives the wife the claim for maintenance under S. 125(4) Cr.P.C. Admittedly, the respondent has taken up the plea in his counter that the petitioner is not entitled to claim separate maintenance for the reason that she is living in adultery. This allegation of the husband that his wife is living in adultery or having extramarital relationship is insulting and humiliating entitling her to live separately from her husband and claim maintenance from him, if he fails to establish such an allegation. Such an allegation by the husband against the wife causes great mental anguish and it is a grave psychic assault on her and it shatters the marital peace and makes living together incompatible. "In Pramila Dai alias Kuni v. Sanatana Jena" reported in 1989 (2) Crimes 288 : 1990 Cri LJ NOC 59 Orissa High Court also took the same view that if the allegation of unchastity is made by the husband against the wife and payment of maintenance is sought to be avoided on the ground of her living in adultery but the plea fails, such a plea by itself is sufficient to entitle the wife to claim maintenance under S. 125, Cr.P.C. This decision was followed in approval in a later decision of that High Court in Baishnab Charan Jena Vs. Ritarani Jena, . The trial Court having held the plea of the respondent that the petitioner is living in adultery as false, granted maintenance to the petitioner as such a plea amounts to cruelty and therefore, the petitioner is entitled for separate maintenance. But, the learned Addl. Sessions Judge in revision held that the respondent established his plea that the petitioner is living in adultery and therefore, refused to grant maintenance under S. 125(4) Cr.P.C. Therefore, it has become necessary for this Court to reappreciate the evidence on record with regard to the plea of the respondent that the petitioner has been living in adultery.

It is significant to note that having taken such a positive plea in his counter that his wife, the petitioner herein, has been living in adultery with her second son-in-law, the respondent examined as RW-1 did not specifically say so in his evidence. In his examination-in-chief, RW-1 stated on this aspect thus :

"In 1993 August after the marriage of the third daughter, PW-1 was got operated in the hospital of Vegendla Sarojini wherein PW-1''s uterus was removed ...... After discharge, I took PW-1 to my house at Katevaram ....... PW-1 took rest at my house for a period of three months. Then all the daughters came to see their mother. All of them are living at Hyderabad along with their husbands. My daughters requested me and took PW-2 along with them. I sent PW-1 to Hyderabad asking her to spend four days each in the house of all the three daughters and to come back. But, PW-1 did not return. I waited for a month and went to Hyderabad. When I called PW-1 to come with me, she postponed her arrival. By then PW-1 was in the house of my second daughter. I instructed my second daughter to send her mother within short time and returned back to Katevaram. One week after my arrival, I again wrote letters to my eldest daughter to send PW-1, but there was no use. About more than one week after my writing the said letter, my second daughter and her husband brought PW-1 to Katevaram. At Hyderabad, during my visit, my first and 3rd daughters complained to me that PW-1 did not behave properly and 1 did not question PW-1 about it."

In his cross-examination, RW-1 stated thus :

"It is correct that a person underwent Hysterectomy needs medical observation and may not be allowed to do hard work for a period of four or five months after the surgery ....... I do not personally know about the misbehaviour of PW-1"

RW-2 is the 3rd daughter of the petitioner and the respondent. She deposed in her examination-in-chief on this aspect thus :

"3 months after the surgery, my 2nd sister and her husband Prabhudas, came to Katevaram and brought PW-1 to Hyderabad. My mother stayed in the house of my second sister for a period of one month. My house was located just opposite to the house of my second sister and I used to visit my second sister frequently. My father came to Hyderabad two months after the arrival of PW-1 to take back PW-1 with him. Though RW-1 called her, PW-1 did not go and refused to go with him. My father asked me why PW-1 was refusing to come with him. I told my father that previously I saw may mother cohabiting i.e, in sextual act with my second sister''s husband, namely, Prabhudass and I chastised PW-1. (Anthakumundu Oka Sari Nenu Naa Chinna Akka Intiloki Vellakane, Naa Bhava Garu Naa Amma Kalsi Padukuni Vunnaru. Adi Suchi, Nenu, Naa Thallini Mandhalinchanu). I told the same to RWO 1 and asked him to take PW-1 with him."

RW-2 further stated in her chief-examination thus :

"Except visiting only once, my father has not come again for PW. 1"

In her cross-examination, RW-2 stated thus :

"PW-1 did not visit my house ...... My elder sister never complained to me badly about PW-1 .......... I went to my second sister''s house at noon time. I did not remember the date. At that time, my sister Prameela was sleeping. I went to fetch a comb for lice. (Deenala Duvena). The house of Prameela is a two room portion. One room and one kitchen. (Nenu Vellisariki, Kitchen room loo, Naa Bhavagaru and Thalli Okarini okar Nuluchikoni, Kougalinchukoni onnaru. Bharya Bharthala Kalisi Vunnaru) ......... I questioned both PW-1 and my sister''s husband and they replied carelessly ....... I informed this incident to my eldest sister. My mother did not visit my house and did not stay in my house."

RW-3 who is the eldest daughter, deposed on this aspect in her examination in chief thus :

"In November, 1993, my father came to take back PW-1. We requested PW-1 to go with our father. But my mother refused to go with my father. I informed RW-1 that PW-1''s behaviour is not proper and asked him to take back her. (Amma Padhati Baga Ledu Meeru Thessukellipondi. Maa Amma Nna Dhakara Vunna Pathi Rojulaleni Naa Rendu Sodhari Bhartha Prabhudass Maa Indiki Oka Sari Vacharu. Neenu Vanda Gadilo Balagaram Dhayaru Chesdhunnanu. Thenaku Kooda Thayaru Cheyamannaru. Dharimila Nenu Tiffin Tharu Chesi Theesukelli Sariki Maa Amma Garu Naa Aaridhi Manchamu Meeda Padukuni Kanicpincharu) I chastised my mother. When my father came calling PW-1, I did not reveal this to RW-1."

In her cross-examination, RW-3 stated thus :

"I know that a female underwent Hysterectomy operation shall not conjugate till completion of six months period." The second daughter with whose husband the petitioner is said to have illicit contacts, has been examined as PW-4 and she has categorically denied all these allegations.

It is no doubt true the two daughters of the petitioner have categorically stated on oath that they saw their mother (petitioner) and Prabhudass her second son-in-law while indulging in sexual act. The learned Addl. Sessions Judge was carried away by the fact that they are her daughters and daughters can never attribute unchastity to their mother. But, in my opinion, the credibility of those witnesses should be judged from the other existing factors and one should not be carried away by the presumption that the daughters will never lie against their mother. It is significant to note that it is not the case of the respondent that prior to her operation, the petitioner had illicit contacts with her second son-in-law. A perusal of the above evidence of RW-1, RW-2 and RW-3 goes to show that as if PW-1 had developed ilicit contacts with her second son-in-law only after the operation and when she was brought to the house of PW-4 during the convalisceny period. We should not forget that the petitioner under went a major operation of removing uterus and RW-3 admits in her cross-examination, as quoted earlier, that a female who under went such an operation cannot indulge in sexual act till completion of six months period. Therefore, the testimony of these witnesses that they saw the petitioner and her second son-in-law indulging in sexual act even before the expiry of six months period after operation is highly improbable. Further, as pointed out by the learned trial Magistrate that the evidence of RW-2 in her examination-in-chief is in conflict with her evidence in cross-examination. As quoted earlier, RW-2 stated in her examination-in-chief that when she went to the house of her second sister in the after-noon, she saw her mother and second brother-in-law sleeping jointly and at that time, her sister was in sound sleep. But, in her cross-examination, she gives a conflicting version stating that by the time she went, she saw her mother and brother-in-law embracing each other while standing like husband and wife and that she did not wake up her sister and that she chastised PW-1 I and her brother-in-law. This version of RW-2 is highly unbelievable. It is most unnatural on the part of the petitioner and her son-in-law indulging in sexual act while her second daughter was inside the house though sleeping. It is not known who opened the door for RW-2 to enter into the house at that odd hour.It is highly improbable for them to indulge in sexual act without bolting the doors inside. The evidence of RW-3 is also most unnatural and it cannot be accepted. Her testimony that her mother and brother-in-law had indulged in sexual act when she went there to give them tiffin is highly artificial.I have no hesitation in accepting the conclusion of the trial Court that the respondent had pressed into service RWs. 2 and 3 to speak falsehood against their mother to avoid maintenance to her. I have also no hesitation to say that RWs. 2 and 3 are liars and their testimony cannot be relied upon. One great significant factor to be remembered in this case is that the petitioner is not having any sons and she has disputes with her husband. It is common knowledge that a house wife having disputes with her husband, will go either to the house of her son or her parental house or to the houses of her daughters. It has come in the evidence of RW-1 himself that during the convalescent period after undergoing major operation, the petitioner was taken to Hyderabad by her own daughters and she stayed in the house of her second daughter.There is nothing unnatural on the part of the petitioner in staying with her second daughter along with her second son-in-law. For the folly on giving shelter to his mother-in-law, the respondents 1 to 3 have attributed illegal contacts to Prabhudass, the second son-in-law. RWs. 2 and 3 instead if taking their mother to their houses, they have attributed illegal contacts to her. This conduct on the part of RWs. 1 to 3 is highly abnoxious. In the circumstances of this case, the learned trial Court rightly disbelieved their testimony and rightly held that the respondent failed to substantiate his plea that the petitioner is living in adultery. The trial Court also rightly held that as the respondent failed to prove the said allegation of adultery, it amounts to cruelty and the petitioner is entitled to stay separately and claim maintenance. The trial Court considering the quantum of income that the respondent is getting rightly held that the petitioner is entitled for maintenance at the rate of Rs. 300/- per month from the date of filing of the petitioner.

For the above said reasons, I quash the impugned order of the learned II Addl. Sessions Judge, Guntur dated 22-7-1997 passed in Crl. Revision 50/96 and I confirm the order of the Magistrate in M.C. No. 2/95 on the file of II Addl. Munsiff Magistrate, Tenali.

In the result, petition is allowed.

Petition allowed.