IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 5TH AUGUST 2008 / 14TH SRAVANA 1930 RPFC.No. 32 of 1998() --------------------- MC.62/1996 OF THE FAMILY COURT, THRISSUR. .................... REVISION PETITIONER/PETITIONER -------------------------------------------------- N. RATHNAM, AGED 39 YEARS, D/O. NARAYANAN, CHIYYARAM VALAPPIL RESIDING AT PULIYATH VEETTIL CHEROOR DESOM, VILVATTOM VILLAGE THRISSUR DIST. BY ADV. SRI.M.R.VENUGOPAL SMT.DHANYA P.ASHOKAN RESPONDENT/RESPONDENT -------------------------------------- MOHANDAS, AGED 49 YEARS S/O. KRISHNANKUTTY MARACKATH VEETTIL, MULLASSERRY DESOM/ VILLAGE, CHAVAKKAD TALUK. BY ADV. SRI.P.SANTHOSH (PODUVAL) FOR R1 SMT.R.RAJITHA FOR R1 THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 05/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - R.P.F.C.No. 32 of 1998 - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of August, 2008 O R D E R The petitioner, whose claim for maintenance under Section 125 Cr.P.C. was turned down by the learned Judge of the Family Court on the ground that she lives in adultery, has come before this Court to assail the order rejecting her claim for maintenance. 2. Marriage is admitted. Separate residence is admitted. Birth of three children in the wedlock is admitted. The husband contended that the wife is not entitled for maintenance on the ground that she lives in adultery. In his absence from India, while he was employed abroad, the claimant wife was allegedly leading an adulterous life with her paramour, one Sahajan. She was allegedly caught red handed indulging in adultery. There were admissions made by him that she had fallen from virtue and was leading an adulterous life. 3. The parties went to trial on these contentions. The claimant examined herself as PW1 and two other neighbours as Pws. 2 and 3. The respondent/husband did not examine himself, R.P.F.C.No. 32 of 1998 2 but examined Rws. 1 and 2. RW1 is an adult son of the petitioner aged about 23 years. RW2 is a nephew of the respondent, who had allegedly witnessed the act of adultery. Exts.B1 to B4 were marked. Ext.B3 is allegedly a letter written by the claimant wife to RW2 when she was caught red handed indulging in adultery. Ext.B4 is allegedly a letter written by the claimant to her paramour. Exts.B1 and B2 are letters written by the claimant to her husband while he was employed abroad. 4. The learned Judge of the Family Court, on an anxious evaluation of all the materials, came to the conclusion that it was safe to place reliance on the oral evidence of Rws. 1 and 2. The learned Judge drew final assurance on the version of the husband and the evidence of Rws. 1 and 2 from Ext.B3 letter written by the claimant to RW2, which she admitted during cross examination and did not offer any explanation. In these circumstances the learned Judge came to the conclusion that the oral evidence of Pws. 1 to 3 cannot be preferred to the evidence of Rws. 1 and 2 and Ext.B3. Ext.B4 letter, though the handwriting resembled convincingly the handwriting in Exts.B1 to B3, was not relied on by the learned Judge of the Family Court as PW1 R.P.F.C.No. 32 of 1998 3 did not admit the same. Accordingly the learned Judge proceeded to pass the impugned order rejecting the claim of the wife for maintenance. 5. Suggestions of this Court that the parties should try to settle the dispute did not evoke any positive result. The petitioner/claimant claims to be aggrieved by the impugned order. What is the grievance? The learned counsel for the petitioner submits that the finding that the claimant wife lives in adultery is not justified at all. Sufficient materials to prove a continuous course of adulterous conduct is not proved. The learned counsel relies on the decision in Mercy and others v. V.M. Varghese (1968 KLT 154) to contend that occasional lapses from virtue do not satisfy the requirement of living in adultery, which alone can dis-entitle the claimant wife from her right to claim maintenance. 6. A court has to be realistic. The standards of an ordinarily prudent person under Section 3 of the Evidence Act must be imported while the evidence is appreciated in all cases. In the instant case we have the oral evidence of Rws. 1 and 2 about the adulterous intimacy between the claimant and her paramour. Their evidence shows that R.P.F.C.No. 32 of 1998 4 the claimant was caught red handed with her paramour under very suspicious circumstances. Ext.B3 is admitted. The contents of Ext.B3 clearly shows and RW2 asserts that Ext.B3 is a letter written by PW1 to RW2. Careful and cautious reading of the contents in Ext.B3 must lead to the inescapable conclusion that no prudent mind can in the light of Ext.B3 come to a contra conclusion on the question that the claimant was living in adultery. It is unnecessary to advert to facts in any further detail. I am satisfied that a reading of Ext.B3 must convey eloquently that the conclusion of the court below that the claimant was living in adultery is absolutely reasonable, cogent, just and fair. The same does not warrant interference. 7. It is true that the contumacious conduct of adultery to justify a claim for divorce is different from the proof of living in adultery which must be adduced in a claim under Section 125 Cr.P.C. But that also does not mean that the law insists on the impossible from a husband when he is called upon to establish the conduct of adultery by his wife. It is true that only in one act of adultery the claimant was caught red handed. But the contents of Ext.B3 convey eloquently that it was not an isolated act of adultery, but a continuous act of adultery in R.P.F.C.No. 32 of 1998 5 the absence of her husband, who was employed abroad. 8. I must remind myself of the nature and quality of the revisional jurisdiction of superintendence and correction. The finding of fact arrived at by a trial court, which has the advantage of seeing the witnesses perform in the witness stand before it, cannot be lightly interfered by the revisional courts. Unless the findings of fact are grossly erroneous and such finding leads to failure or miscarriage of justice, such correctional jurisdiction cannot and should not be invoked. I am satisfied that this is an eminently fit case where the factual finding of the court below does not warrant revisional interference at all. The challenge fails. 9. This revision petition is accordingly dismissed. (R. BASANT) tm Judge