C.V. Sirpurkar ORDER
C.V. Sirpurkar, J.
1. This criminal revision filed on behalf of the revisionist wife Neetu Thakur, is directed against the order dated 5.4.2013 passed by the Court of Principal Judge, Family Court, Bhopal in miscellaneous judicial case No. 425 of 2011, whereby the application of revisionist wife under Section 125 of the Code of Criminal Procedure for maintenance, was partly allowed and maintenance in the sum of Rs. 2000/- each was granted to daughter Ritika and son Gaurav Thakur; however, maintenance to revisionist wife Neetu was rejected.
2. The facts necessary for disposal of this criminal revision may briefly be stated thus: Revisionist Neetu and respondent Laxmi Narayan were married on 9th February, 2000. Daughter Ritika and son Gaurav were born in the wedlock. As per revisionist's case, her parent gave household items worth Rs. 2,50,000/- by way of dowry at the time of marriage but the respondent husband started beating her from the wedding night itself for bringing inadequate dowry. Respondent husband used to level false imputations regarding her chastity. Her in-laws used to taunt and harass her in connection with their demand for dowry. Subsequently, the parents of the revisionist also gave a new motorcycle to the respondent in dowry. On 25.3.2011, revisionist Neetu was locked in a room and was severely beaten up. She was turned out of her matrimonial home along with children. The respondent threatened that if she would not bring Rs. 5 lacs in dowry, she would not be allowed to step inside her matrimonial home. The respondent also retained her Stridhan. She is living along with her parents. Respondent husband is a permanent employee in the Ordinance Factory at Itarsi. He earns Rs. 25,000/- per month along with other perks. The revisionist is unable to maintain herself and her children; therefore, it was prayed that the respondent be directed to pay maintenance in the sum of Rs. 10,000/- to the revisionist wife and Rs. 5000/- to the two children.
3. The respondent has opposed the application mainly on the grounds that the revisionist is a licentious women. After marriage, she developed illicit relations with one Satish Prajapati. She used to call aforesaid Satish Prajapati to her home whenever the respondent was out on night duty. On a number of occasions, the respondent surreptitiously saw them at night in compromising position. On 4.3.2010 and 26.3.2010 when the respondent out on night duty, the revisionist Neetu was found in compromising position with Satish Prajapati. On 26.3.2010, the guards on patrolling duty in ordinance factory, Itarsi, found the revisionist roaming around with Satish Prajapati on motorcycle. They were caught and released after admonition. Thus the revisionist was engaged in adultery. When the respondent used to stop the revisionist from maintaining relations with Satish Prajapati, she used to threaten to implicate him in false cases of dowry.
4. It has further been submitted on behalf of the respondent that the respondent had given a written complaint to his superiors in ordinance factory and police officers regarding the conduct of the revisionist. On 9.7.2010 an application under Section 13-B of the Hindu Marriage Act was filed in the Court of Second Additional Sessions Judge for divorce by mutual consent. In that application and the affidavit filed therewith, the revisionist has categorically admitted that there had never been any dispute between the parties regarding harassment for dowry. This application was subsequently dismissed for non-prosecution. An application under Section 10 of the Hindu Marriage Act for judicial separation was also filed on 25.10.2010 before Second Additional Sessions Judge, Hoshangabad but this application was also dismissed for non-prosecution.
5. It has further been submitted on behalf of the respondent that on 19.2.2011 at about 9:30 p.m., the respondent was required to go for duty; therefore, he asked the revisionist to serve dinner. At that time, revisionist Neetu was engaged in telephonic conversation with Satish Prajapati and she called him to her home; whereon, upon the instigation of the revisionist, Satish Prajapati beat the respondent with curtain rod. The respondent lodged the first information report in Police Station Pathrota, the same night; wherefrom, he was sent for medical examination and the respondent was directed to file a written complaint in the Court, which he subsequently did. The respondent has also stated in his reply that the revisionist left for her parental home on 25.3.2011 along with valuables and is living there on her own free will and accord. The respondent went to Bhopal to bring her back but she refused to do so; as such, revisionist had deserted the respondent.
6. After trial, the learned Principal Judge, Family Court, concluded that the revisionist has admitted in her application and affidavit filed in the case under Section 13-B of the Hindu Marriage Act for divorce by mutual consent that there is no dispute between the parties regarding harassment for dowry. As such, her allegations regarding persecution and harassment in connection with demand for dowry cannot be believed. Learned trial Court also held that the respondent has not only alleged that the revisionist was living in adultery with aforesaid Satish Prajapati but has also, from time to time, made complaint to his higher ups in the factory and also to the police regarding conduct of his wife. He filed documents from record of the ordinance factory in order to demonstrate that on 26.3.2010 security personnel of ordinance factory had caught the revisionist roaming around on a motorcycle with Satish Prajapati. They were allowed to go after being duly admonished.
7. In aforesaid circumstances, learned trial Court concluded that the revisionist has not been able to prove that she was harassed by the respondent in connection with demand for dowry but the real dispute between the parties was that the revisionist was living in adultery with Satish Prajapati and the respondent objected to the same; therefore, the revisionist left her matrimonial home without any cause.
8. On the basis of aforesaid conclusions, maintenance was denied to revisionist wife.
9. In this criminal revision, learned counsel for the revisionist has mainly assailed the findings recorded by the learned Trial Court regarding adultery.
10. It may be noted here that sub-section (4) of 125 of the Code of criminal procedure ordains that wife shall not be entitled to receive the allowance for maintenance or interim maintenance and expenses of the proceedings as the case may be from her husband under this section, if she is living in adultery (Emphasis supplied).
11. Now the question arises as to whether the respondent husband had succeeded in establishing the fact that the revisionist wife was living in adultery? It is true that in the exercise of revisional jurisdiction, the evidence cannot be appreciated or re-appreciated as in an appeal; however, where it appears that the learned trial Court has misdirected itself, resulting in miscarriage of justice, the High Court under revisional jurisdiction may intercede in the matter.
12. It is settled position of law that in order to disentitle a wife from maintenance under Section 125 of the Code of Criminal Procedure, it is necessary to prove continues adulterous conducted by wife at or about the time of petition for maintenance. A wife can be said to be living adultery if it is established by evidence that she is living in a quasi-permanent union with her paramour and is continuously committing violation of marital obligation. A single or even occasional lapse from virtue would not disentitle her from receiving maintenance.
13. Whether the respondent was able to adduce evidence to establish that the revisionist was living in adultery to aforesaid extent, is the question the Court must address. It is true that act of adultery consist of sexual intercourse. The act by its very nature is such that all practicable precautions are taken to screen it from public eye. As such, direct evidence of adultery is rarely forthcoming and the Court has to draw the conclusions from the conduct of the parties as established by evidence in the facts and circumstances of a particular case.
14. In the case at hand, the conclusions of learned trial Court that the revisionist was living in adultery are mainly based upon the statement of the respondent and the documents obtained by him from the record of Ordinance Factory under Right to Information Act, wherein it has been recorded that the revisionist was found roaming about in the factory premises on motorcycle with one Satish Prajapati on 26.3.2010. The respondent has stated in his evidence that on numerous occasions he superstitiously watched the revisionist and Satish Prajapati in a compromising position at night. In these circumstances, the natural reaction of any self-respecting husband would be to raise alarm and gather the other family members and neighbours on the spot. At the very least he would confront his wife and her paramour but the respondent states that he just calmly watched the adulterous conduct of his wife and apart from trying to reason it out with her to stop having relations with her paramour took no direct action. He has examined no other witness to corroborate the fact that the revisionist was in fact living in adultery.
15. It has been stated that the security personnel of the Ordinance Factory had caught the revisionist with Satish Prajapati as aforesaid, at around 1:00 a.m. on 26.3.2010 but no such Security Personnel was examined on behalf of the respondent to establish the said fact. Merely, filing an official note purpotedly recorded by the Security Personnel does not establish the said fact.
16. If we observe the conduct of the respondent, we find that as per his own admission, he was not merely suspicious of his wife's alleged adulterous conduct but was actually eye witness to it. He is said to have seen his wife in compromising position with her alleged paramour as far back as on 4.3.2010 and yet he continued to live with the revisionist as husband and wife till 25th March, 2011. This behaviour of the respondent is against common course of human conduct. It appears that either respondent is telling lie or he has no self-respect. In any case as already observed, a solitary or even occasional lapse from virtue is not enough to refuse maintenance to wife. On the basis of evidence adduced in the case, it can certainly not be concluded that the revisionist was living with her alleged paramour in a quasi-permanent kind of union, in flagrant violation of marital obligations. Thus, in the opinion of this Court, learned trial Court misdirected itself while appraising the evidence on record and the finding recorded by it to the effect that the revisionist was living in adultery, is unsustainable.
17. Thus, in the opinion of this Court, learned trial Court was not justified in denying the maintenance to revisionist wife to which, she is entitled. So far as the question of quantum of maintenance is concerned, learned trial Court has recorded in paragraph No. 14 of the impugned judgment that in August, 2011, the gross salary of the respondent was Rs. 18,394/- and his net salary Rs. 10,181/-. Learned trial Court also observed that the revisionist is deliberately depositing an amount larger than necessary in provident fund in order to bring his net salary down. Keeping in view, the financial status of the revisionist, it would be appropriate to grant Rs. 4000/- per month to revisionist wife by way of maintenance from the date of order of the trial Court. No further interference in the impugned order is warranted.
18. On the basis of aforesaid discussion, the revision petition is partly allowed. The part of the impugned order declining to grant maintenance to revisionist wife is set-aside. It is directed that the respondent husband shall pay maintenance at the rate of Rs. 4000/- per month to the revisionist wife from the date of the order of the trial Court i.e. 5th April, 2013. The mode of payment of maintenance to the revisionist wife shall be the same as directed in the impugned order for the payment of maintenance to the revisionist Nos. 2 and 3. The prayer for enhancement of rate of maintenance allowance to the revisionist Nos. 2 and 3 is rejected.
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