Ram Das Gautam vs Smt. Sukh Devi

M. Wahajuddin, J.—The applicant who is husband of opposite party No. 1 has come forward with a prayer that the proceeding against him u/s 125 Code of Criminal Procedure inititated by the wife may be quashed.

It is urged that the applicant will be harassed in facing the proceeding and, contesting it before the trial court and the proceeding itself is not maintainable because Delhi High Court has granted a decree for divorce in favour of the applicant on ground of adultery. A perusal of Section 125 Code of Criminal Procedure and the sections following it would indicate that a number of defences are open to the husband in a proceeding u/s 125 Code of Criminal Procedure before the Magistrate. The crux of the matter is whether the ends of justice would be served or defeated by this Court taking up those matters and adjudicating upon the grounds of defence which could be taken before the lower court who has invited written statements and evidence and has to consider the same as a court of competent jurisdiction. Learned Counsel for the applicant has relied upon the cases of Chandrapal Singh and Others Vs. Maharaj Singh and Another, , State of Karnataka Vs. L. Muniswamy and Others, and Mohd. Hafiz v. State 1977 ACR 268 in support of his argument that the powers u/s 482 Code of Criminal Procedure are very wide and can be exercised even at initial stage in suitable cases. None of these cases are u/s 125 Code of Criminal Procedure. The principle of law that powers are very wide are otherwise also well settled but what the court has to consider is whether such powers would be used to disturb the normal procedure laid down in the Code of Criminal Procedure. I have already observed that a number of defences are open to the husband. If this Court starts entertaining such defences at the preliminary stages before the parties have filed their written statements before the Magistrate and led evidence it would rather be holding the trial itself instead of leaving the matter to the Magistrate as initial court for considering such pleas and that would mean that in every case a party may come forward here direct u/s 482 Code of Criminal Procedure with his defence, urging that on account of such defence plea the application u/s 125 Code of Criminal Procedure must fail so it should be quashed. I think this would rather instead of serving the cause of justice defeat it. I must appreciate the fair minded spirit of the counsel that he has cited all rulings which he considered to be relevant irrespective of any consideration whether they would necessarily help him or not. The case of Syed Mukhtar Ahmad v. Smt. Moonis Fatma 1981 ACR 277 was also cited in which it was held that while on divorce the wife becomes entitled to claim maintenance from ex husband provided she is unable to maintain herself her right to claim maintenance would come to an end only if she remarriages or lives in adultery. It is urged that in view of the decree for divorce on ground of adultery wife''s right to claim maintenance has come to an end. The whole question is whether the matter of adultery should be heard and decided by this Court as to record a finding of fact instead of leaving it to the Magistrate to first decide it after evidence before that court. It is noteworthy that in the case of Prakash Chandra Verma v. Smt. Prakashwati 1983 AWC 433 overruling the case of Dhani Ram v. Parwati 1980 ACR 8 it was held that even if a decree for divorce or for judicial separation obtained by the husband on the ground of desertion, wife is still entitled for maintenance. By this I do not mean to say that adulterous wife would be entitled to maintenance but what I mean to say is that the matter has to be tried and adjudicated upon by the Magistrate whether the wife is living in adultery. Of course while considering that matter the judgment of the Delhi High Court dated 12-1-82 annexure II will be relevant. A perusal of this judgment would show that in that case only one incident of adultery was referred alleging that the wife was seen indulging in sexual relation with the brother of the husband in the night intervening 29/30 September 1979. The application for maintenance has been preferred on 18-10-1982. The Delhi High Court judgment would simply reveal that one act of adultery more than three years prior to this application was alleged and found. I would have avoided to touch this aspect but as the matter has been stressed and the applicant wants quashing of the proceedings simply on such incident of adultery I may confine myself to making an observation that what is required to be proved is that the wife is living in adultery. As to what would constitute ''living in adultery'' is a question of fact to be determined by the Magistrate on such plea being raised thereunder Section 125(4) Code of Criminal Procedure. In the commentary AIR Mannual IV Edition Volume 12 on Section 125 Code of Criminal Procedure note 25 a number of case law has been cited as to what amounts to living in adultery. I would not prejudice the hearing of the matter by the trial court by going into further details. It would be sufficient to observe that a hearing on fact would be required for a finding on the matter, also taking the Delhi High Court judgment as a relevant piece of evidence which refers to only a single act of adultery and that too more than three years back. With these observations this application is summarily rejected.