Smt. Samila Devi vs Shankar Dass

T.U. Mehta, J.—The Petitioner is the wife of the Respondent, the marriage of the parties having taken place on 26 Ashad 2030 Bk equivalent to the year 1973 A.D. The Petitioner filed maintenance application u/s 123 of the Code of Criminal Procedure praying for the maintenance at the rate of Rs. 200/- per month from the Respondent. The Respondent in his reply denied the fact of marriage, and also alleged that the Petitioner was not entitled to any maintenance as she was living in adultery.

The case of the Respondent is that about 5| months after the marriage the Petitioner gave birth to a child and, therefore, this child could not be the child of the marriage. According to the Respondent, therefore, the Petitioner should be presumed to be living in adultery and hence not entitled to any maintenance.

During the course of the evidence which was offered by the parties, the Respondent husband admitted the fact of Magistrate, therefore, considered this admission along with other evidence which was produced in the case in proof of the marriage and came to the conclusion that the Petitioner wife had successfully proved that the marriage between the parties took place on 26 Ashad 2030 Bk.

The learned Magistrate, however, found that child was born to the Petitioner about six months after the marriage and, therefore, this child could not be the child of the marriage. According to the learned Magistrate, therefore, the Petitioner was found to be living in adultery and, therefore, under Sub-Section 4 of Section 125 of the Code of Criminal Procedure, she was not entitled to any maintenance.

So far as the fact of marriage is concerned, the learned Magistrate is found to have arrived at his conclusion quite correctly. Apart from the admission of the Respondent husband about the marriage, there is sufficient evidence to show that the parties married each other on 26 Ashad 2030 Bk.

Shri Thakur who appeared on behalf of the Respondent-husband contended that subsequent to the marriage the Respondent suspected the character of the Petitioner wife, and thereafter the Petitioner wife took away all her ornaments and clothes, and this, according to the custom of the parties, amounted to a divorce. Shri Thakur also contended that the marriage was voidable u/s 7 of the Hindu Marriage Act and, therefore, it was avoided by taking divorce. According to Shri Thakur, therefore, the Petitioner is not entitled to any maintenance.

The above contention is highly misconceived. Shri Thakur read before me the reply filed by the Respondent husband. There is no plea therein suggesting that there was divorce between the parties. As a matter of fact, no such issue was raised, and the perusal of the judgment recorded by the learned Magistrate shows that there was DO argument advanced before him on the question of fact, there is no evidence about the divorce and the evidence consists only of the fact that the Petitioner was turned out by the Respondent husband and subsequently she took away some of her clothes aed ornaments.

At any rate, according to Clause (b) of the explanation attached to Section 125 of the Code of Criminal Procedure, the term "wife" includes a woman who has been divorced by her husband, and has not remarried. Under the circumstances even if there was a divorce the Petitioner was entitled to claim maintenance till her remarriage.

The only question which, therefore, survives for consideration is whether the learned Magistrate was justified in refusing to award the maintenance on the ground that the matter fell within Sub-section (4) of Section 125 which contemplates adultery. This Sub-section (4) is in the following words:

(4). No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, o: if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

The terms of Sub-section (4) clearly indicate that the wife would be disentitled to maintenance u/s 125 of the Code only if it is found that "she is living in adultery". The expression "is living in adultery" clearly connotes a continuing and present course of behavior and, therefore, unless it is found that at the relevant time the wife was actually living in adultery it cannot be said that she is disentitled to maintenance under Sub-section (4) of Section 125.

Now, here the case of the Respondent is that the Petitioner wife conceived some time before the marriage took place and, therefore, a child was born to her only within six months after the marriage. Even if this contention is believed as true, it would mean that the Petitioner had some sexual connection with somebody before her marriage with the Respondent took place. If the Petitioner had some sexual connection with some body before her marriage, that would not amount to adultery as the offence of adultery presumes the existence of a marriage. Therefore, even if the allegations made by the Respondent husband in this connection are believed to be true, it cannot be said that at the relevant time the Petitioner wife was living in adultery. For bringing his case under Sub-section (4) of Section 125, Code of Criminal Procedure what Respondent husband was required to prove was that when the petition for maintenance was filed the Petitioner wife was living in adultery. There is no evidence to show that after the marriage took place the Petitioner had any illicit connection with any body else. Under the circumstances, the learned Magistrate was patently wrong in coming to the conclusion that the matter fell within the purview of Sub-section (4) of Section 125.

Apart from what is stated above, the learned Magistrate has omitted to take into consideration the specific provisions contained in Section 112 of the Indian Evidence Act which says that the fact that any person was born during the continuance of a valid marriage between his mother and any man shall be conclusive proof that he is a legitimate son of that man unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. This conclusive proof which is contemplated by Section 112 of the Evidence Act has not been displaced because it is an admitted fact that after the marriage both the parties had access to each other for a number of days. Under these circumstances, the surmises and inferences which the learned Magistrate has drawn about the legitimacy of the child which was born to the Petitioner about six months after the marriage were totally unwarranted. In fact, it was a case in which presumption about the legitimacy of the child should have been drawn by the learned Magistrate.

Under the circumstances, I find that the learned Magistrate ought not to have dismissed the maintenance petition of the Petitioner wife. The learned Magistrate has not recorded any finding as to the amount of maintenance which could be awarded to the Petitioner wife. Under the circumstances, 1 allow this revision application, set aside the order passed by the learned Magistrate and hold that the Petitioner wife is entitled to maintenance u/s 125 of the Code of Criminal Procedure. The learned Magistrate shall decide the quantum of the maintenance to which the Petitioner would be entitled after appreciating the evidence already offered by the parties on this question. It is ordered that the record of the case and a copy of this order shall be sent immediately to the learned Magistrate and the learned Magistrate shall dispose of the question of maintenance by giving top priority to this matter. Rule accordingly made absolute.