THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.Petition No.3872 of 2008 Date: .04.2011 Between: Meka Sarojini … Petitioner AND 1. Sri Meka Eswara Rao 2. The State of A.P., rep.by its Public Prosecutor, High Court of A.P., Hyderabad. … Respondents THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl. Petition No.3872 of 2008 ORDER: A very unfortunate case where a wife, who has been living away from the husband for over 30 years, sought for grant of maintenance from the husband, but the same was denied. The petitioner is the wife. She laid M.C.No.30 of 2003 on the file of the Judicial Magistrate of First Class, Narsapur seeking for grant of maintenance at Rs.5,000/- by invoking Section 125 of the Code of Criminal Procedure (‘Cr.P.C.’ for short). The learned Munsif Magistrate, Narsapur dismissed the petition with costs (sic). The wife preferred revision in Crl.R.P.No.129 of 2009 before the VI Additional Sessions Judge, Narsapur. The learned Additional Sessions Judge dismissed the revision and confirmed the orders in M.C.No.30 of 2003. He directed the parties to bear their own costs. 2. The wife consequently came up with the present petition seeking to quash the orders in Crl.R.P.No.129 of 2005 on the file of the VI Additional Sessions Judge, Narsapur and to grant maintenance in her favour. She also sought for interim maintenance at Rs.3,000/- per month. 3. There was no interim order relating to temporary maintenance. The husband, who was the respondent in M.C.No.30 of 2003 and the first respondent in Crl.R.P.No.129 of 2005, is arrayed as respondent No.1. The husband entered appearance and contested the case. Sri K. Chidambaram, learned counsel for the first respondent- husband raised two-fold contention viz., that i) the petitioner-wife is not entitled to maintenance, as she is capable of maintaining herself and that she lived in adultery so much so she is not entitled to seek for maintenance and ii) the very petition is not maintainable as this petition against the orders in a revision does not lie. Thus, the learned counsel for the husband attacked the case both on question of fact as well as on question of law. I propose to answer the question of fact at the outset and then shall attempt to answer the question of law raised by the husband. 4. The wife was described to be 53 years old at the time of laying of the present petition. Her husband was shown to be 54 years old. Sri S.R. Sanku, learned counsel for the wife pointed out that the wife, who is destitute and is not able to eke out for livelihood, seeks financial assistance from her husband for her survival. He claimed that the wife was able to work as a servant-maid and earn to make her ends meet with difficulty and that as long as the wife was capable of earning some money, she was reluctant to depend upon the income of her husband. He asserted that on account of old age, the petitioner- wife is no longer able to work as a servant-maid, that nobody has been engaging the petitioner as servant-maid and that the petitioner became a total destitute without a morsel to live upon. This is the reason offered by the learned counsel for the petitioner as an explanation why the petitioner did not seek for maintenance from her husband till 2003, albeit the husband necked the petitioner out of the matrimonial home in 1982 itself. 5. On the other hand, the husband raised several grounds resisting the claim of the petitioner. The case of the husband is that the wife left the matrimonial home voluntarily deserting the husband without any reason and that the wife therefore is not entitled to claim maintenance from the husband. He asserted that the wife has been leading immoral life and had live in adultery and that she consequently is not entitled to maintenance. He finally contended that the wife has means to live upon, lest she should have approached the Court for maintenance long ago. With reference to the wife living separately from the husband as against the claim of the husband, the petitioner- wife alleged that the husband has taken the second wife and that there was no alternative but to live separately for the wife from the matrimonial home without her husband as he had taken a second wife. 6. Curiously, the factum of the second marriage of the first respondent-husband is not denied but is affirmed by the first respondent. The first respondent as RW.1 admitted that he married Devaki Devi in 1984 and gave birth two daughters. However, he contended that he divorced the petitioner-wife in 1984 through Ex.R.2 divorce agreement dated 11.04.1984 and that he married Devaki Devi only thereafter. 7. The defence of the first respondent-husband has two-fold implications. By claiming that he divorced the petitioner-wife, the first respondent-husband is suggesting that the petitioner-wife is not entitled to claim maintenance after the dissolution of the marriage. His defence further implies that the claim of the petitioner that she is entitled to maintenance on the ground that her husband has taken another wife would not sustain, as the vinculum juris between the petitioner and the first respondent was broken through Ex.R.2 divorce agreement. Thus, it is the case of the first respondent-husband that the petitioner-wife is not entitled to maintenance, as she is no more his legally wedded wife. 8. It may be recalled that it is the stand of the first respondent-husband that the marriage between the wife and the first respondent-husband was dissolved by divorce through a customary divorce before elders. It was not a divorce by a competent civil Court. The first respondent-husband set up customary divorce. The petitioner-wife indeed denied the same. 9. The onus indeed is upon the first respondent-husband to establish that the divorce by caste elders is prevalent and is accepted in their community. He further established that such a customary divorce was ordered between the petitioner-wife and the first respondent-husband by caste elders. 10. The petitioner-wife and the first respondent belonged to fishermen community in West Godavari District. The learned counsel for the wife contended that there is no practice of a customary divorce amongst the fishermen in West Godavari District. 11. To support his stand that there was a divorce between the petitioner and the first respondent through the caste elders, the first respondent examined RW.2. RW.2 claimed that he is a caste elder. However, RW.2 did not state in unequivocal terms that customary divorce is prevalent in their community in their area. Indeed, RW.2 referred to Ex.R.2 divorce agreement, which admittedly bears the signature of the wife. However, I am afraid that the evidence of RW.2 is not sufficient to conclude that there was a customary divorce between the wife and the husband. Thus, on question of fact, RW.2 and consequently the husband failed to establish that there is a practice of customary divorce in their community. 12. Further, the wife as PW.1 did not admit the contents of Ex.R.2. She claimed that her signature was obtained on a blank paper and that Ex.R2 perhaps was scribed on such a blank paper. It, therefore, is evident that the husband failed to show that the marriage between the wife and the husband stood dissolved and that there was no jural relationship of wife and husband between the petitioner and the first respondent. 13. Thus, the first respondent-husband fails in non-suiting the petitioner-wife on the technical ground that there is no jural relationship of man and his wife between the first respondent and the petitioner. 14. Apart from the technical grounds, the first respondent- husband also claimed that the wife voluntarily deserted the husband and that she therefore is not entitled to maintenance, that the wife has been living in adultery and that she therefore is not entitled to maintenance. She further asserted that the wife has means of her own lest she should have sought for maintenance long ago and that the wife is not entitled to maintenance. 15. The claim of Sri K. Chidambaram, learned counsel for the first respondent-husband is that the wife has voluntarily deserted the first respondent-husband in 1976 and that she never returned to the matrimonial home. It is the case of the first respondent-husband that as the whereabouts of the petitioner-wife were not known for about 8 years from 1976 to 1984, the first respondent-husband contracted marriage with Devaki Devi and that the marriage between the first respondent and Devaki Devi therefore could not be a ground for the petitioner-wife to live separately from the first respondent-husband. As already pointed out, admittedly the first respondent has taken the second wife, Devaki Devi not a as concubine but as a legally wedded wife of the first respondent. When the husband takes a second wife or a concubine, the wife certainly would be justified to stay separately from the husband. Such a conduct of the wife would not ifso facto disentitle her from claiming maintenance from the husband. The claim of the petitioner herein therefore cannot be rejected on the ground that she has been living separately from the husband and that the same is tantamount to voluntary desertion on the part of the petitioner. 16. It is the case of the wife that she has been living separately as the husband has taken another woman and that she has no alternative but to leave the matrimonial home. 17. The wife indeed denied the claim of the first respondent that the whereabouts of the wife were not known, which was since the time the wife eloped with one person or the other. 18. A few dates become relevant in this context. Ex.R.2 is dated 11.04.1984. It is the case of the first respondent that the first respondent married Devaki Devi subsequent to Ex.R.2. In other words, the claim of the first respondent is that he contracted a second marriage as nothing was heard about the petitioner for a continuous period of eight years and that the petitioner thus was considered to have been dead. The case of the petitioner indeed is that since 1982 she has been living in a hut raised opposite the house of the first respondent. At any rate, the defence of the first respondent that the petitioner was deemed to have been dead as nothing was heard about her for about eight years from 1976 and that the marriage of the first respondent with Devaki Devi cannot now be challenged by the petitioner cannot be sustained. 19. I have already concluded that the first respondent has failed in establishing that there is a custom of divorce upon caste elders amongst the community of the petitioner and the first respondent. Consequently, the alleged divorce between the petitioner and the first respondent-husband covered by Ex.R.2 is non est. In turn, the marriage between the first respondent and Devaki Devi is a bigamy marriage within the meaning of Section 125 Cr.P.C. However, would the petitioner be entitled to maintenance on this count? 20. Apart from attributing about the conduct of the petitioner, the first respondent-husband also alleged that the petitioner did not seek maintenance prior to 2002 since the petitioner has means to maintenance herself. The learned counsel for the first respondent alleged that the petitioner possesses Ac.0.16 cents of land, that she derives an income of about Rs.50,000/- per annum and that as the petitioner is not a destitute without any income and that as the petitioner voluntarily deserted the first respondent-husband, she is not liable to be maintained. 21. The learned counsel for the petitioner inter alia contended that the expression “unable to maintain herself” occurring in Section 125 Cr.P.C. shall be construed liberally. In Rajathi v. C. Ganesan[1] relied upon by the learned counsel for the petitioner, it was observed that the onus would be upon the husband to establish that he does not have sufficient means to discharge his obligation or that he did not neglect or refuse to maintain the wife. It is the contention of the learned counsel for the petitioner that while the wife is able to show that the first respondent neglected to maintain her, the first respondent has not established through any evidence that the respondent did not neglect to maintain the petitioner. 22. The learned counsel for the petitioner placed reliance upon Rajathi v. C. Ganesan[2] (stated supra) where it was held that maintenance proceedings u/s.125 Cr.P.C. being summary in nature require prima facie evidence and not clinching proof. I n Dwarika Prasad Satpathy v. Bidyut Prava Dixi[3] relied upon by the learned counsel for the petitioner, the Supreme Court observed that the standard of proof requires in a proceeding u/s.125 Cr.P.C. is not of the same standard as in the case of a criminal case and that the wife is not expected to prove her case beyond reasonable doubt. It is his contention that the petitioner established through evidence that the first respondent-husband has neglected to maintain her, that she did not have means of her own and that she is entitled to be maintained by the first respondent. 23. Incidentally, I may point out that when the first respondent has taken Devaki Devi as second wife, while the marriage with the petitioner subsisted, the petitioner certainly is justified to stay away from the matrimonial home and claim maintenance from the first respondent-husband. The contention of the learned counsel for the first respondent that the petitioner is not entitled to maintenance on the ground that she voluntarily deserted the husband, therefore, cannot be accepted. The enquiry, therefore, would be whether the petitioner possesses means to maintain herself or not. The wife indeed denied the suggestion that she owned Ac.0.16 cents of land and has been deriving an income of Rs.50,000/- per annum. However, she herself admitted that her father purchased Ac.0.16 cents of dry land in her favour and that the same is fit for construction of houses. In other words, the petitioner-wife has been contending that the Ac.0.16 cents of land owned by her has not been generating any income as it is not agricultural property and has not been receiving any income from the site owned by her. 24. The learned counsel for the first respondent-husband would contend that where the petitioner-wife admittedly owned a house, it cannot be considered that she did not have means and that if the property has not been generating any income, the sale of the same definitely would create income for the livelihood of the petitioner. The learned counsel for the petitioner-wife more or less is adamant in contending that the husband is bound to maintain the wife when the wife has no means of her own and that the first respondent-husband shall maintain the petitioner-wife irrespective of the fact that the wife possessed Ac.0.16 cents of house property. In the alternative, the learned counsel for the petitioner-wife contends that the property owned by the petitioner is not capable of generating any income and that the petitioner therefore shall be considered to have no income of her own. The question whether the property owned by the petitioner shall not be computed as means of the petitioner for the purpose of enquiry u/s.125 Cr.P.C. deserves to be answered, though unfortunately, in favour of the first respondent-husband and against the petitioner wife. The law would appear to be that a wife would not be entitled to maintenance u/s.125 Cr.P.C. so long as she is capable of maintenance herself. In computing the financial capability of the wife, all the sources of the wife, if any, deserve to be pooled up. The petitioner-wife cannot pick and choose a few items of her belongings and show as if she does not have the capacity to maintain herself. 25. The thrust of the learned counsel for the petitioner-wife regarding Ac.0.16 cents of land owned by the petitioner is that the land is not agricultural property but is fit for construction for house sites only. Admittedly, such a property does not generate income periodically unless the property is sold once and for all. I am afraid that the petitioner cannot eat the cake and have it too by keeping the Ac.0.16 cents of land with her on the one hand and seeking for maintenance from her husband on the other hand. It may be recalled that it is not the case of the petitioner that no one is willing to purchase her Ac.0.16 cents of land and that her property is worthless. She claims maintenance from her husband keeping aside the Ac.0.16 cents of land owned by her from the reckoning. I am afraid that the petitioner is not entitled to take such a stand. The petitioner who admittedly owned Ac.0.16 cents of house site cannot be considered a lady without means. Where the petitioner owns Ac.0.16 cents of house plot, I am constrained to agree with the contention of the learned counsel for the first respondent-husband that the petitioner has means and that the first respondent would not be liable to maintain the petitioner-wife who has means to maintain herself. 26. I may hasten to add that there is no dispute about the means of the first respondent. Apart from owning Ac.1.70 cents of wet land and Ac.1.90 cents of mango tope, the first respondent admittedly derives considerable income. Indeed, the first respondent is not resisting the claim of the petitioner on the ground of lack of means on his part. He is resisting the claim considering that the petitioner herself has means and consequently is not entitled to seek for maintenance from the husband by invoking Section 125 Cr.P.C. Suffice it to notice at this stage that the petitioner is found to have means of her own to maintain herself, so much so the petitioner is not entitled to claim maintenance from the husband. 27. Other issues touching upon the character of the petitioner also have arisen in this case. I consider it appropriate to answer them as those contentions tarnish the character of the petitioner. I would also consider it appropriate to answer the question of law that has been already suggested. 28. One of the grounds of resistance by the first respondent- husband is that the wife lived in adultery. The learned counsel for the petitioner-wife contended that adulterous conduct would disentitle a wife from claiming maintenance if the wife has been living in adultery and not otherwise. He drew my attention to Section 125 (4) Cr.P.C., which adumbrates that a wife shall not be entitled to maintenance if such a wife has been living in adultery or has refused to live with the husband without sufficient reasons. Section 125 (3) Cr.P.C. explanation contemplates that a wife would be entitled to refuse to live with the husband if the husband contracted marriage with another woman or takes another woman as a mistress. Sri S.R. Sanku, learned counsel for the petitioner-wife rightly contended that an incidence of fling or a one night affair between the wife and another man does not fall within the ambit of Section 125 (4) Cr.P.C. and that the continuous adulterous conduct on the part of the wife alone would disentitle the wife from claiming maintenance u/s.125 Cr.P.C. It is his case that the petitioner never committed acts of adultery let alone living in adultery. It may be noticed that it is the case of the first respondent that the petitioner lived in adultery with Koram Venkat Rao, Cholluboina Kesava Rao and Kolleti Suryanarayana at different times, that the petitioner is a lady of easy virtues and that the petitioner is not entitled to maintenance from the husband even if the petitioner had no means of her own. 29. I am afraid that the allegations made by the first respondent against the petitioner touching upon the fidelity of the petitioner are omnibus in nature. The allegations of this nature perhaps should not be made as a sweeping comment. The first respondent must be able to establish his claim regarding the immoral life of the petitioner with fair amount of certainty. 30. Perhaps realizing the gravity of the allegations made by him, the first respondent attempted to prove his claims against the petitioner. Inter alia, the first respondent examined RW.3 who is the son of Kolleti Suryanarayana. RW.3 contended that his father Suryanarayana had illicit intimacy with the petitioner and that Kolleti Suryanarayana did not take care of RW.3 and the mother of RW.3. He further deposed that on account of his illicit intimacy with the petitioner, his father did not even perform the marriage of the sister of RW.3. Admittedly neither RW.3 nor his mother either lodged a police complaint or moved a competent court for grant of maintenance against Kolleti Suryanarayana. They never raised any dispute regarding the conduct of Kolleti Suryanarayana and the petitioner. He further admitted that it is the first respondent who took him to court to depose. 31. As rightly submitted by the learned counsel for the petitioner, the evidence of RW.3 is not satisfactory. First, the evidence of RW.3 does not appear to be the evidence of an independent witness in the sense RW.3 would appear to have a grouse against his father that his father did not look after RW.3 and his sister and mother. Further, no one summoned RW.3 to the Court. He voluntarily went to the Court to depose in the case. He would appear to be anxious to speak against his father. I am afraid that the evidence of RW.3 does not deserve to be accepted without reasonable support from the circumstances. The first respondent also examined RW.2 who is a caste elder. Curiously, RW.2 deposed that the petitioner lived in adultery at different times with Venkat Rao, Kesava Rao and Suryanarayana. I assume that RW.2 was referring to Koram Venkat Rao, Cholluboina Kesava Rao and Kolleti Suryanarayana. Inter alia, RW.2 claimed that when the petitioner eloped with Kesava Rao, the petitioner deserted her children and left the children in the company of the first respondent. PW.3 is one of the daughters of the petitioner. PW.3 did not support the case of RW.2 and did not support the case of the first respondent. She sailed with the stand of the petitioner. PW.3, who is a grown up daughter, could have equal affection towards both her parents. The evidence of PW.3 carries better weight than the evidence of RWs.2 and 3 regarding the conduct of the petitioner. Added to it, RW.2 admitted that there was a compromise between the petitioner and the first respondent through Ex.R.2 letter dissolving the marriage between the petitioner-wife and the first respondent-husband and that Ex.R.2 did not refer to the illicit intimacy and the conduct of the petitioner from 1976 till 1984. 32. The petitioner examined her elder sister and her daughter as PWs.2 and 3. She examined herself as PW.1. The first respondent examined himself as RW.1. He examined a caste elder as RW.2 and the son of Kolleti Suryanarayana as RW.3. Barring for Exs.P.1 and P.2 and R.1 to R.3, no documentary evidence is let in by either side. In the absence of documentary evidence, the evidence of RWs.1 to 3 acts as oath against oath the evidence of PWs.1 to 3. The claim of the first respondent that the petitioner has been living in adultery would stand unproved on account of lack of evidence, since burden of proof regarding this allegation lies upon the first respondent. 33. Exs.P.1 and P.2 are the notice by the petitioner demanding maintenance and the postal acknowledgement thereof. They do not establish the primary case of the petitioner that the petitioner is a destitute, that the first respondent has refused to maintain the petitioner and that the petitioner is entitled to be maintained by the first respondent. Ex.R.1 is the letter by RW.3 to the first respondent. It merely speaks about the alleged illicit intimacy. It does not prove the case of the first respondent. Ex.R.2 is proceedings of customary divorce. I had already pointed out that customary divorce between the