A Few Moral Lapses Of Woman And Return Back To Normal Life Can’t Be Said To Be "Living In Adultery": Patna High Court
The Patna High Court dismissed a Criminal Revision Petition of a husband against the Order of the Family Court which directed him to pay maintenance to his wife and daughter.
Patna High Court
The Patna High Court held that a few more lapses and a return back to a normal life cannot be said to be living in adultery.
The Court held thus in a Criminal Revision Petition preferred by a husband against the Order of the Family Court which directed him to pay Rs. 3,000/- per month to his wife and Rs. 2,000/- per month to his daughter towards their maintenance.
A Single Bench of Justice Jitendra Kumar observed, “Living in adultery” denotes a continuous course of conduct and not isolated acts of immorality. One or two lapses from virtues may be acts of adultery, but would not be sufficient to show that the woman was “living in adultery”. A few moral lapse and a return back to a normal life can not be said to be living in adultery. If the lapse is continued and followed up by a further adulterous life, the woman can be said to be “living in adultery.”
The Bench said that adulterous life is no doubt disqualification for any wife to get maintenance from her husband under Section 125 of the Criminal Procedure Code, 1973 (CrPC), however, any physical relationship of a lady with any person prior to her marriage does not come within the definition of ‘adultery’ because adultery is an offence against one’s spouse.
“… adulterous life of any wife subsequent to her marriage is undoubtedly a disqualification for any married wife to get maintenance from her husband”, it added.
Advocate Ranjan Kumar Jha represented the Petitioner while APP Upendra Kumar and Senior Advocate Sanjeev Kumar Mishra represented the Respondents.
Facts of the Case
In 2012, the Respondents i.e., wife and daughter of the Petitioner-husband filed a case under Section 125 CrPC for their maintenance against the Petitioner and his parents. Later on the parents were deleted from the array of the Opposite Parties before the Court. It was alleged that the marriage between the parties was solemnized in 2010 as per Hindu rites and customs and out of the wedlock, a girl was born. Allegedly, the Respondent-wife was subjected to physical assault on account of non-fulfilment of demand of additional dowry. She left the matrimonial home and it was further alleged that her husband was having illicit relationship with a lady. It was also alleged that her husband and parents-in-law wanted her to die so that her husband could remarry the said lady and get handsome dowry.
It was also stated that she was ready to live with her husband but her husband was not ready to keep her in his matrimonial home. Regarding income of her husband, it was alleged that her husband was in Government job and his income from cultivation and business was Rs. 24,000/- per month. On the other hand, the Petitioner-husband alleged that his marriage was forcibly solemnized with the Respondent at a temple and he also disputed the paternity of the daughter as she was born just after about 4.5 months of the marriage. It was further claimed that she was having illicit relationship with her brother-in-law and was not interested to continue her matrimonial life with the Petitioner. He also claimed that his monthly income was only Rs. 11,000/-. He denied the allegation of demand of dowry and torturing therefor.
Reasoning
The High Court in view of the facts and circumstances of the case, noted, “… the petitioner-Avadh Kishore Sah has never filed any matrimonial petition before Family Court or any Civil Court regarding declaration in regard to paternity of O.P. No.3/Gudiya Kumari. Hence, there is no declaration by any Family Court or Civil Court to the effect that O.P. No.3/Gudiya Kumari is not legitimate daughter of the petitioner or she is illegitimate daughter of any other man.”
The Court further elucidated that the proceeding under Section 125 CrPC is summary in nature and meant to prevent the vagrancy and destitution of wife and children and provide a speedy remedy for the supply of food, clothing, and shelter to them.
“However, as it has been already discussed and found in previous paragraphs of the judgment, strict standard of proof is not required in a proceeding under Section 125 Cr.PC unlike in matrimonial proceedings, where strict proof of marriage or paternity is essential. Prima facie, satisfaction of the Court regarding marital status of the parties and the paternity of the child is sufficient to pass order under Section 125 Cr.PC”, it said.
The Court also observed that any finding regarding marital status of the party or paternity of the child in a proceeding under Section 125 CrPC is tentative and not final and it is always subject to Order of any Civil Court or Family Court, which are the competent Courts to conclusively decide the marital status of the party or legitimacy or illegitimacy of the child.
“Hence, there is mandatory legal presumption that O.P. No.3 is legitimate daughter of the petitioner, and there is no pleading or evidence on record to rebut this conclusive proof”, it added.
Moreover, the Court took note of the fact that the Respondent has no source of income to maintain herself and daughter.
“In view of the aforesaid facts and circumstances, the quantum of maintenance awarded by Family Court is not excessive in view of the requirement of O.P. Nos. 2 and 3 as well as income of petitioner as per the evidence on record”, it concluded.
Accordingly, the High Court dismissed the Petition and upheld the Order granting maintenance.
Cause Title- ABC v. The State of Bihar & Ors. (Case Number: CRIMINAL REVISION No.262 of 2020)
Appearance:
Petitioner: Advocates Ranjan Kumar Jha, Mirtunjay Kumar Mishra, Rana Pratap Singh, and Nitu Kumari.
Respondents: APP Upendra Kumar, Senior Advocate Sanjeev Kumar Mishra, Advocates Manini Jaiswal, Binay Krishna, and Manas Rajdeep.
