IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 4TH JANUARY 2010 / 14TH POUSHA 1931 RPFC.No. 161 of 2004(E) ---------------------------------- MC.51/1993 of THE FAMILY COURT, KANNUR .................... : REVISION PETITIONER/COUNTER PETITIONER: ------------------------------------- P.V.SAJEEVAN, AGED 30 YEARS, S/O.NATIONAL NARAYANAN, KUTTIYERI AMSOM, MANICHERRY DESOM, TALIPARAMBA TALUK. BY ADVS.MR.M.SASINDRAN MR.SREEJITH S.NAIR RESPONDENT(S): PETITIONER: -------------------------- T.N.PRAVEENA, AGED 22 YEARS, D/O.KUNHIRAMAN, MINI NIVAS, KONNAPPURAM, MOTTAMMAL KANNUR DISTRICT. R1 BY ADVS.MR.A.MOHAMED MUSTAQUE, MR.M.K.SUMOD. THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 04/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = R.P.(F.C.) NO. 161 OF 2004 = = = = = = = = = = = = = = = Dated this the 4th day of January, 2010. O R D E R This revision is preferred against the order of the Family Court, Kanur in M.C.51/03. The petition was one for maintenance and the court below has granted a maintenance of Rs.1,250/- per month. The contention of the husband is that the wife was living in adultery which dis-entitles her to claim maintenance u/s 125(4) of Cr.P.C. The unfortunate couple got married on 13.10.2001 and after living for three weeks together the husband left for his employment at gulf country. It is the contention of the husband that on 2.3.02. the wife had committed adultery with one of the workers of his house namely Bhaskaran which had been seen by CPW3 and others and thereafter had left the matrimonial home without any reason and therefore she is not entitled to maintenance under both these heads. On the contra the wife would submit that the father of the husband was torturing her and on account of the cruelty meted out she had left the M.A.C.A. 161 OF 2004 -:2:- matrimonial home. It has to be stated that if the plea of adultery is false then necessarily the wife has got a reasonable ground to live separately for the reason that no wife can tolerate such accusation on her moral side. It has also to be stated that in a case of adultery there will not be any direct evidence and ordinarily it is the circumstances and other materials which are use for connecting the case. But so far as this case is concerned at 10.30 a.m. on March, four persons are going to Peg mark rubber trees and while proceeding they are able to see the petitioner and one Bhaskaran in a compromising situation and that is the evidence available in this case. CPW2 and CPW3 are the alleged eye witnesses. Before entering into analyzing the evidence of those persons this court has to state that since it is only exercising revisional jurisdiction it has to confine its application of mind to the perversity, irregularity or illegality committed by the court below. I will just refer the evidence of CPW2 who is one Asokan. He is a tapper by profession. According to him on 2.3.2002 on the relevant date he along M.A.C.A. 161 OF 2004 -:3:- with Sajeevan and Varghese were proceeding and they were able to see PW1 and Bhaskaran in a compromising position. It is deposed by him that generally he has no business to go near that property and according to him the place of incident is really in between the lands of RW1 and one Ramakrishnan. It has to be stated that the incident was first seen by Varghese and they have not questioned them before it. He would also depose “....................................................... .................................................................................. If it is so how did husband of the petitioner came to know about this will be a big question. CPW3, Varghese is alleged to have seen the incident on the first occasion would depose that they had questioned the petitioner and Bhaskaran before the public and thereafter had advised. This is totally in contradiction to what CPW2 has stated. He would also depose that he had not stated about these to anybody but only after 3 or 4 days later the father of RW1 and brother had asked him. The evidence of CPW2 and CPW3 really does not inspire confidence though they in a tailored fashion would M.A.C.A. 161 OF 2004 -:4:- depose that they had seen the adulterous act. It is much interesting to read the evidence of CPW1, the husband who would say that the wife after the incident had left the matrimonial home and thereafter had informed the husband about these things without disclosing the same and only on enquiry on that basis he had came to know about it. So this is a third version of the story. CPW1's evidence would reveal that there was some misunderstanding between father in law and the daughter in law. Ext.R2 is alleged to be an agreement regarding mediation. There is no whisper regarding the factum of adultery in that letter. Therefore a reading of the evidence of CPW1, 2 and 3 does not inspire confidence in me also regarding the correctness of the version of adultery. I am conscious of the fact that adultery cannot be proved by way of direct evidence. But when direct evidence is tendered it must be acceptable and believable. I agree with the learned Family Court Judge that one cannot accept the evidence of these persons to prove adultery. Similarly there is nothing to show in this case regarding the M.A.C.A. 161 OF 2004 -:5:- factum that the lady was living in adultery to deprive her of the maintenance u/s 125(4) of Cr.P.C. Even if the evidence of CPW2 and 3 are accepted as such, even then only one act is proved which is not sufficient u/s 125(4) to deprive the wife for maintenance. So from the totality of the entire circumstances I do not find any perversity, illegality or irregularity committed by the Family Court in analyzing and arriving at a decision regarding the separation as well as non proof of adultery. Therefore the revision lacks merit and the same is dismissed. M.N. KRISHNAN, JUDGE. ul/-