Shivashankreppa vs Shaila and Others

K.N. Phaneendra, J.—The petitioner is before this Court challenging the Order passed by the Judge, Family Court, Bijapur, in Crl. Misc. No. 282/2013, wherein the said Court has awarded maintenance of Rs. 3,000/- each per month to the respondent Nos. 1 to 4 herein U/Sec. 125 of Cr.P.C.

The learned counsel for the petitioner strenuously argued before the Court that he is ready and willing to maintain the children and pay the amount at the rate of Rs. 2,000/- per month to respondent Nos. 2 to 4 and the first respondent, the wife is not entitled for maintenance as she is living in adultery. It is further contended that the trial Court has not properly appreciated the oral and documentary evidence on record produced by the petitioner in order to prove the adultery on the part of the wife.

It is further contended that the respondents have not produced any sufficient materials to show the income of the petitioner herein and also it is stated that he is only earning an amount of Rs. 2,500/- per month. Therefore, he is not in a position to pay such an amount awarded by the trial Court. On these grounds, the petitioners counsel contended that the revision petition deserves to be allowed and consequently the order of the trial Court deserves to be modified.

Per contra, the learned counsel for the respondents strenuously contended that the husband has taken a serious objection with regard to the fidelity and conduct of his wife. Therefore, it is incumbent upon the petitioner to prove the adultery plea taken up by him beyond reasonable doubt. Otherwise, that itself is sufficient to come to conclusion that the respondents are entitled for maintenance as prayed for. It is contended that the respondent No. 1 is not only entitled for maintenance, but they are also entitled for compensation for having failed in proving the adultery against her. It is further contended that the petitioner admittedly is a Class-I contractor and having sufficient landed properties in his name and no other dependants are there to be maintained by him. His father admittedly has been receiving pension of Rs. 25,000/- per month. Therefore, the order passed by the trial Court though, it has not granted as claimed by the respondents before the trial Court but the order impugned under the appeal does not deserve for any modification. Therefore, he pleaded for dismissal of the petition.

On perusal of the entire records, the undisputed facts are that the marriage between the petitioner and the first respondent took place on 8-12-2000 and afterwards they lived happily for some years and they were blessed with three children i.e. respondent Nos. 2 to 4 herein. Thereafter, the dispute started between husband and wife on the allegations that the respondent No. 1 is living in adultery and she is having illicit contact with one Shivanand Rolli and therefore she voluntarily left the conjugal company of the petitioner and she has been living in her parent''s house and therefore it is the case of the petitioner before the trial Court that she is not entitled for maintenance. There is no dispute that the husband and wife are not living together and children are living with the wife. On consideration of the facts, the following questions arises for consideration:-

1) Whether the petitioner/husband has proved to the satisfaction of the Court beyond reasonable doubt that the first respondent is living in adultery and thereby she is not entitled for any maintenance?

2) Whether the respondents are entitled for the maintenance at the rate of Rs. 3,000/- each per month as awarded by the trial Court and whether it is exorbitant and that the petitioner is not capable of making such payment to the respondents?

Coming to the first point, the petitioner examined himself as R.W. 1 before the Court. He relied upon certain documents, Ex. R-5 to Ex. R-9 for the purpose of proving the adultery against his wife coupled with his oral evidence. In his oral evidence, he has categorically stated that earlier after one year of the marriage, he came to know that first respondent has been living in adultery, but due to the advise of elders, he has taken her back and started living with her and thereafter respondent Nos. 2 to 4 born to them. It is further alleged that, even after that, she continued the adultery with said Shivanand Rolli. Except these two sentences, nothing has been stated what is the nature of relationship she was having with Shivanand Rolli by elucidating vividly the circumstances and instances. Except his statement before the Court, no other evidence has been led, except the documents produced before the Court. In the course of cross examination regarding those allegations made by the petitioner, making allegations of adultery against the wife, the wife has specifically denied the allegations as false and it is suggested that those allegations are concocted and documents produced before the Court are also concocted and allegations are baseless. Therefore, looking to the above said oral, documentary and the cross examination, it is clear that mere statement of a person which is not supported by any other material cannot be said to be a proof of the factum of adultery. Now coming to the documents produced before the Court by the respondent, Ex. R-5 alleged to be the greeting card sent by Shivanand Rolli to the first respondent This document shows that this was dated: 22-10-1993 much prior to the date of marriage. This document will no way show the proof of any adultery merely because somebody gives a greeting card and sends greeting card, it cannot be ipso-facto presumed that because of the sexual contact, such greeting card was given. It is to much to say on the part of the petitioner that the first respondent is living in adultery, because of that only said Shivanand Rolli has given the greeting card. Even the signature on this document has not been proved that it belongs to Shivanand Rolli. This document in fact has been produced by the petitioner himself. He has to explain how he came in custody of such document and how he could prove the signature in the said document. Ex. R-6. Ex. R-7 to Ex. R-9 are alleged to be the love letters written by Shivanand Rolli to the respondent. But, as could be seen from these documents, particularly Ex. R-7 and Ex. R-8, in those letters only two film songs have been written, nothing else is there. It is not there who has actually sent those letters to whom and no signature are there. Even on plain reading of these letters, at any stretch of imagination, any ordinary prudent man can say that these two documents are love letters. Ex. R-9 again it is letter alleged to have been written by Shivanand Rolli but it also does not contain signature of anybody and hand writing of these documents differ from one of another. Therefore, looking to the above such documents, it appears that some how vaguely petitioner wants to prove his case on the basis of disorted un-believable documents being placed before the Court. No prudent person can come to the conclusion on the basis of the above said documents that the respondent is living in adultery.

In order to prove adultery, the person who alleges adultery has to prove the ingredients of Sec. 497 of IPC, whether it is a civil case or criminal case, if allegations of criminal mis-conduct of commission of offence is alleged and particularly when the allegations amounting to assassination of a character of a woman, then such allegations have to be proved beyond all reasonable doubt. No where Section 125 of Criminal Procedure Code or under any other Law the adultery is defined except Indian Penal Code. Therefore, we must fall back upon provisions of Sec. 497 of IPC to ascertain what exactly the definition of adultery. The said provision reads as follows:-

"497. Adultery.-Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor." The above said provision clears out the doubt in order to prove the adultery, one has to prove the sexual intercourse between two person i.e. the sexual intercourse with a person who is and whom he knows and reason to believe wife of any other person with that of the man such sexual intercourse not amounting to offence of rape, then only the provision is attracted. Therefore, unequivocally to the satisfaction of the Court, petitioner has to establish before the Court that Shivanand Rolli knowing fully well that the first respondent is the wife of the petitioner have had sexual intercourse with her without the consent or connivance of the petitioner. What is to be noted here is that the main ingredient in the provision is "sexual intercourse between two persons who are not wife and husband and the lady shall be the wife of some other person". The sexual intercourse between the two persons is the prime ingredient that has to be established before the Court.

Now coming back to the facts of this case, even assuming the above said documents i.e. Ex. R-5 to 9 and also as alleged by the petitioner that the respondent No. 1 had lot of telephonic conversion with Shivanand Rolli, those facts themselves will not constitute an offence U/Sec. 497 IPC. Therefore, the tone and terror of the above said letters, at any stretch of imagination show the physical contact between the first respondent and the said Shivanand Rolli, which is a dominent ingredient requires to be established Mere taking of a defence that the wife is living in adultery is not sufficient, but it operates as a doubled edged weapon, in the event of non proving the case alleged against the wife i.e. particularly adultery that would show the conduct of the husband in making such reckless character assassination allegations against the wife. If the Court is of the opinion that the said allegations are not proved to the satisfaction of the Court, the conduct of the petitioner shall be met with iron hand. Therefore, in my opinion, in this particular case, the petitioner has utterly failed to prove the allegations made against the wife. Therefore, I have no hesitation to hold that the conduct of the petitioner is not condonable.

Now turning to the quantum factor, the trial Court awarded Rs. 3,000/- each per month to the respondent Nos. 1 to 4. In the evidence of RW-1 with regard to maintaining the petitioners, it is stated at para No. 2 that he has kept 50-tolas of gold in the name of the first respondent, kept Rs. 30,000/- and Rs. 10,000/- and another sum of Rs. 5,000/- in the name of his children and he has been giving all his income to the hands of the wife, when she was living with him. These admissions clearly goes to show that he is capable of keeping 50-tolas of gold in the name of his wife and also lot of money by way of fixed deposit in the name of children. Further added to that, he has categorically admitted in the cross examination that he is a Class-I contractor, doing electrical contract business and also admits that his father is a retired employee getting pension of Rs. 25,000/- per month. Therefore, all these factors clearly indicate that though he is having sufficient income, he came up with a plea that he has income of only Rs. 2,500/- per month. It is also to be taken note of while arguing the matter before the Court, the learned counsel for the petitioner argued that the petitioner is willing to pay Rs. 6,000/- per month towards maintenance to respondent Nos. 2 to 4, that also clearly goes to show that his income per month is not Rs. 2,500/- but some thing more than that, which has not been suppressed in the evidence of the respondent. Ex. P-1 RTC extract pertaining to sy. No. 182/2 of Jumanal village also show that this petitioner is the owner in possession of 8-acers of land. His father is also having 8-acres 20-guntas of land in sy. No. 182/1B. This also clearly goes to show that exclusively his name is shown as Khatedar in sy. No. 182/2, that also shows that he has got some income from the landed property also. Therefore, it is crystal clear that the petitioner has not approached the Court with clean hands, he has suppressed the material facts before the Court, that itself is sufficient for the Court to draw inference that he neglected and refused to maintain his wife and children. It is also admitted in the evidence that only once he has paid the school fee so far as the children are concerned, but he never made any attempts to pay any amount towards the maintenance to the children. Therefore, the conduct of the petitioner itself speaks of volumes about the ill-treatment and harassment to his wife and children. Under the above said circumstances, I absolutely found no mistake in the judgment of the trial Court in awarding amount of Rs. 3,000/- each per month in favour of respondent Nos. 1 to 4. I do not want to interfere with the judgment of the trial Court. Accordingly, the petition deserves to be dismissed and the same is dismissed.

If any amount is deposited before this Court, the same is ordered to be transmitted to the trial Court with a direction to release the said amount in favour of the respondent No. 1 for herself and on behalf of her children.