THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Revision Case No.361 of 2004 Date: 28.08.2009 Between: Cherukuru Kanakaraju. .. Petitioner. And Smt. Cherukuru Sampoornamma and another. .. Respondents THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Revision Case No.361 of 2004 Judgment: This Criminal Revision Case is directed against the order dated 22.12.2003 passed in Criminal Revision Petition No.75 of 2003 on the file of the VII Additional Sessions Judge (Fast Track Court), Madanapalle. The parties will be referred as they are arrayed in this revision case hereinafter for the sake of convenience. The brief facts of the case are as follows. The first respondent herein, who is the wife of the revision petitioner herein, filed M.C. No. 13 of 1986 claiming maintenance of Rs.500/- per month from the revision petitioner. The revision petitioner was set ex parte, and consequently, the said M.C was allowed on 08.09.1986 directing the revision petitioner to pay maintenance of Rs.500/- per month to the first respondent herein. The revision petitioner filed a petition to set aside the said ex parte order, but the same was dismissed. The salary of the revision petitioner was attached in E.P. proceedings. Then the revision petitioner filed O.P. No. 49 of 1995 on the file of the Senior Civil Judge, Kadapa, seeking divorce under Sections 13 and 13-A of the Hindu Marriage Act inter alia alleging that the first respondent was living in adultery with one Basha and that the first respondent had voluntarily deserted him. The first respondent did not contest the said O.P, and consequently, O.P. No.49 of 1995 was allowed on 03.04.1998 granting decree of divorce in favour of the revision petitioner. Subsequently, the revision petitioner filed Crl.M.P. No.909 of 1999 in M.C. No.13 of 1986, seeking to cancel the maintenance awarded in favour of the first respondent, contending that since O.P. No.49 of 1995 was allowed on the ground that the first respondent was living in adultery and that she has been living in adultery with one Ramachandra at present and therefore she is not entitled for maintenance. The first respondent filed her counter and denied the allegations made by the revision petitioner. It is her case that she could not contest O.P. No.49 of 1995 at Kadapa as the revision petitioenr was residing at Kadapa and due to fear of the revision petitioner, she could not go to Kadapa and another reason assigned by her for not contesting the said O.P is lack of funds. It is also her case that the ex parte order passed in O.P. No. 49 of 1995 cannot bind her and does not operate as estoppel. Her further case is that they married according to the Christian Marriage Act and that the revision petitioner has not furnished the particulars of alleged paramour and that he never attributed adultery in the earlier proceedings and that such allegations are made at the instance of his second wife and therefore the petition is liable to be dismissed. On behalf of the revision petitioner PWs.1 to 3 were examined and Exs.P1 and P2 were marked. On behalf of the first respondent RWs.1 to 3 were examined and Exs.R1 to R4 were marked. The learned II Additional Judicial Magistrate of First Class, Madanapalle, on appreciation of the entire evidence and material on record, came to the conclusion that the findings in O.P. No.49 of 1995 that the first respondent was living in adultery and willfully deserted the revision petitioner are the findings of a Civil Court and that the findings of the Civil Court are binding on the criminal Court and in view of such finding, the wife, who is living in adultery, is not entitled for maintenance under Section 125 Cr.P.C., and accordingly, allowed Crl.M.P. No.909 of 1999 and cancelled the ex parte maintenance orders passed in M.C. No. 13 of 1986, dated 08.09.1986. Aggrieved by the same, the first respondent preferred Criminal Revision Petition No.75 of 2003 on the file of the VII Additional Sessions Judge, Fast Track Court, Madanapalle. The learned VII Additional Sessions Judge, Madanapalle, on re-appreciation of the entire evidence, came to the conclusion that there is no satisfactory evidence to show that the first respondent was living in adultery. The learned Sessions Judge also came to the conclusion that a decree of divorce obtained by the husband only proves the dissolution of marriage and the same does not prove the alleged adultery and holding so the revision petition filed by the first respondent was allowed. Challenging the same, the revision petitioner came up in revision before this Court. Learned counsel for the revision petitioner submitted that the first respondent has deserted the revision petitioner without any reasonable cause and that she had been living in adultery earlier with one Basha and presently with one Ramachandra and the dissolution of marriage in O.P. No.49 of 1995 on the file of the Senior Civil Judge, Kadapa, proves that the first respondent was living in adultery and the evidence of PW.3, who is no other than the son of the revision petitioner and the first respondent, proves that the first respondent was living in adultery. It is also his submission that no son would come forward to speak against his own mother and therefore the learned Sessions Judge ought not tohave discarded the evidence of PW.3. His further submission is that the revision petitioner by adducing evidence proved that his wife, the first respondent is living in adultery. It is also his submission that the evidence adduced on behalf of the revision petitioner was rejected on mere conjectures and surmises. On the other hand, learned counsel for the first respondent submitted that it is easy to make an allegation of adultery and to escape the liability of paying maintenance and that the earlier proceedings clearly show that the revision petitioner never alleged any adultery against the first respondent and that the letters written by PW.3 also show that he never attributed adultery to the first respondent and that in the absence of any satisfactory evidence, the learned Magistrate ought not to have cancelled the order of maintenance. It is also his submission that O.P. No.49 of 1995 was decreed ex parte and therefore the findings in that O.P cannot be taken as conclusive proof of adultery. The point that arises for consideration is whether the first respondent was living in adultery and whether the impugned order is liable to be set aside. It is not in dispute that the marriage of the revision petitioner and the first respondent was solemnized in the year 1976 and they blessed with a son, who is examined as PW.3 in this case. It is also not in dispute that the first respondent filed M.C. No.13 of 1986 on the file of the II Additional Judicial Magistrate of First Class, Madanapalle. The revision petitioner was set ex parte and an ex parte order was passed in the said M.C., directing the revision petitioner to pay monthly maintenance @ Rs.500/- per month to the first respondent. It is not necessary to discuss whether the marriage of revision petitioner and the first respondent was performed according to Hindu rites and customs or in accordance with Christian rituals. It is also not necessary to discuss as to whether the revision petitioner himself deserted the first respondent. The only point that arises for consideration is whether the order of maintenance is liable to be cancelled or not. The crux of the issue is whether the first respondent lived in adultery, which makes her disentitled for claiming the maintenance allowance. The revision petitioner has been examined as PW.1. According to him, his marriage with the first respondent was performed in the year 1976 and the first respondent originally belonged to Rangasamudram of P.T.M. Mandalam and that after the marriage they had put up their family at Kadapa. It is also his case that the first respondent was frequently visiting her parents house and that she had illicit intimacy with one Syed Basha, a fruit vendor. It is also his case that the said Syed Basha used to visit his house in his absence. It is also his case that in the year 1985, the first respondent went to her parents house along with his son, who was aged about 4 years by then and did not return and his efforts for mediation failed. His further case is that since his wife lived in adultery earlier with Syed Basha and now living in adultery with one Ramachandra at Upparavaripalle, she is not entitled to claim maintenance from him. It is also his case that his son now returned to him and has been residing with him. PW.2 is the resident of Upparavaripalle. He is related to the first respondent and the first respondent is his daughter by courtesy. According to him, the first respondent developed illicit intimacy with one Basha and resided with the said Basha at Madanapalle for about 10 years. His further case is that the first respondent returned to their village about 7 or 8 years back (he was examined on 09.12.2002) and developed illicit intimacy with one Ramachandra. His further case is that the first respondent used to work under the said Ramachandra and used to reside with him at his house. It is also his case that about four or five panchayats were held and that the first respondent did not participate in those panchayats and that the son of the first respondent also left her on account of her illicit intimacy. PW.3 is no other than the son of the parties. According to him, he was with his mother from his childhood and that he studied up to 10th Class at Upparavaripalle. According to him, his mother developed illicit intimacy with one Ramachandra of Upparavaripalle and she is of bad conduct. It is also his case that because of the conduct of his mother, he felt ashamed and left the village and joined his father. It is also his case that about 10 years back when Basha died at Kadapa, he accompanied his mother to Kadapa. It is also his version that his mother was asking him to call the said Basha as his father. The first respondent was examined as RW.1. According to her, the revision petitioner developed illicit intimacy with one Vijayamma and that he beat her and driven her out of his house and therefore she filed M.C. No.13 of 1986 claiming maintenance. It is also her case that the revision petitioner filed a petition in Crl.M.P. No.993 of 1997 claiming that there was a settlement between him and myself and that the said petition was dismissed on 15.05.1997. Ex.R1 is the certified copy of the said order. It is also her case that neither in Crl.M.P. No.993 of 1997 nor in O.S. No.141 of 1997 the revision petitioner had alleged adultery against her. Her further case is that her son had written several letters to her, but he did not make any allegations against her in the said letters. It is also her case that her son is now under the influence of the revision petitioner and therefore he deposed against her. On behalf of the first respondent, one Venkataswamy was examined as RW.2 and according to him, the first respondent is not leading any questionable life and that she has been living by doing coolie work. It is also his case that his house is very nearer to the house of the first respondent and that the allegations made against the first respondent are incorrect. Another witness RW.3 was examined on behalf of the first respondent, who deposed that the handwritings in Exs.R2 and R3 letters pertain to PW.3, the son of the first respondent and the revision petitioner. As far as the question of adultery is concerned, it is very difficult to prove the same. Only the family members or close relatives or immediate neighbours may know something about the adultery. In the circumstances, it appears that the evidence of PW.3 assumes much importance. The specific allegation against the first respondent is that she was living in adultery with one Basha at Madanapalle and subsequently she developed illicit intimacy with one Ramachandra at Uppavaripalle. The learned counsel for the first respondent argued that the revision petitioner did not make any allegations of adultery in the earlier proceedings. As seen from the record, the first respondent filed M.C. No. 13 of 1986 seeking maintenance from the revision petitioner. Subsequently, she filed O.P. No.32 of 1994 as an indigent person seeking excess maintenance against the revision petitioner for herself and her son. It is not clear as to what happened to that petition. Subsequently, the revision petitioner filed Crl.M.P. No. 993 of 1997 seeking cancellation of maintenance on the ground that he had paid a lump sum amount of Rs.20,000/- to the first respondent. As seen from the contents of Ex.R1, the said petition was dismissed on 15.05.1997 by the learned II Additional Judicial Magistrate of First Class, Madanapalle, holding that the revision petitioner herein failed to prove that he had paid an amount of Rs.20,000/- to the first respondent. PW.1 himself admitted that he has not mentioned about the illicit intimacy of the first respondent with Basha in the petitions filed by him for setting aside the ex parte orders in M.C. No. 13 of 1986 or in Crl.M.P. No. 993 of 1997 or in O.P. No.32 of 1994. For the first time, he made such allegations in O.P. No.49 of 1995. Admittedly, the said Basha died in 1991. The revision petitioner has been residing at Kadapa and the said Basha was residing at Madanapalle. PW.3, of course, deposed that her mother used to ask him to call the said Basha as his father and that he accompanied her mother to Kadapa when the said Basha died. It appears that the first respondent had some acquaintance with the said Basha, but, admittedly, the revision petitioner did not make any allegations against the first respondent and the said Basha till he filed O.P. No. 49 of1995. It appears that the said Basha died even before filing of O.P. No.49 of1995, and therefore, it is difficult to accept the allegation of the revision petitioner that the first respondent was living in adultery with the said Basha. The further case of the revision petitioner is that the first respondent had subsequently developed illicit intimacy with one Ramachandra of Upparavaripalle. According to the revision petitioner himself, he did not mention about the illicit intimacy between the first respondent and Ramachandra in his divorce petition before Kadapa Court, because by that time he had no knowledge about the said illicit intimacy. According to PW.2 he is a resident of Uppavaripalle and that he is related to the first respondent and that the first respondent developed illegal intimacy with one Basha and resided with him at Madanapalle for about 10 years and that he used to see the first respondent and the said Basha in weekly Santha and that subsequently the first respondent returned to their village Upparavaripalle about 7 or 8 years back (prior to 09.12.2002). According to PW.2, she developed illicit intimacy with one Ramachandra, who is a well to do agriculturist in the village. His further case is that the first respondent used to work under Ramachandra and used to reside with him at his house. It is also his assertion that even now the first respondent is residing in the house of Ramachandra and working under him. He denied the suggestion that he left Upparavaripalle about 30 years ago. According to him, after the death of Basha, the first respondent is residing with Ramachandra. It is also his case that even the panchayats were held in which Ramachandra also participated and manhandled the revision petitioner. Of course, the revision petitioner himself did not state that he was manhandled by the said Ramachandra. PW.3 is no other than the son of the revision petitioner and the first respondent. He was aged about 22 years by the date of giving evidence on 09.12.2002. According to him, he studied up to 10th Class at Upparavaripalle. He has categorically deposed that his mother developed illicit intimacy with one Ramachandra at Upparavaripalle and she is of bad conduct. It is also his case that because of her conduct, he felt ashamed and left the village and joined his father. The main attack against this witness is that he did not mention about the illicit intimacy in his letters written to his mother (first respondent). I have gone through those letters. PW.3 did not mention about the illicit intimacy of his mother in those letters. It is to be seen that PW.3 was a student. A son is not expected to write about the illicit intimacy of his mother in the letters written by him either to his mother or to his relations. Of course, there is only one sentence in the letter dated 05.06.1999, wherein PW.3 suggested his mother that a wife who is living alone leaving her husband will be looked down by the society. Therefore, merely because PW.3 did not mention anything about the illicit intimacy, it does not mean that his evidence has to be discarded. Of course PW.3 has denied that he had written those letters. RW.3 was examined to say that those letters are in the hand writing of PW.3. Even if it is held that those letters are in the hand writing of PW.3 as discussed above, the same would not make the evidence of PW.3 unreliable. PW.3 is no other than the son of the first respondent. Normally, no son would speak attributing unchastity to his mother, unless it is within his personal knowledge. Admittedly, PW.3 was living with his mother during the relevant period. There appears to be nothing to disbelieve the testimony of PW.3. His evidence has been inspiring confidence. The first respondent was examined as RW.1. According to her, the revision petitioner has made false allegations against her with a view to avoid payment of maintenance to her. It is also her case that her son did not quarrel with her at any time attributing unchastity to her. As discussed above, PW.3 who was a student and minor, could not have questioned the character of her mother. Of course, it is a fact that the first respondent was also doing coolly work and maintaining him. The evidence of RWs.2 and 3 would not make the evidence of PW.3 untrustworthy. The overall facts and circumstances have to be taken into consideration. Ex.R4 shows that the first respondent sought legal aid from the Supreme Court Legal Services Committee. The learned VII Additional Sessions Judge, Madanapalle, held that PW.3 was made to speak that his mother developed illicit intimacy with Ramachandra. It is also observed that PW.3 did not speak of his mother’s illicit intimacy with Basha and that PW.3 did not give any specific incident that made him to feel that his mother is of bad character and was having illicit intimacy either with Basha or with Ramachandra. It is also observed that simply because his mother and Basha were residing in one house at P & T Colony, Madanapalle town for about one year, it cannot be concluded that Basha and mother of PW.3 are having illicit intimacy and so as the case of Ramachandra. It is also observed that the evidence of PW.3 shows that it is only his suspicion that his mother is having illicit intimacy with one Basha and Ramachandra. It has to be seen that PW.3 is no other than the son of the first respondent. As far as illicit intimacy of the first respondent with Basha is concerned, PW.3 was aged about 10 years when the said Basha died. The age of PW.3 was shown as 22 years as on 09.12.2002. Admittedly the said Basha died in 1991. Therefore, PW.3 appears to be 10 or 11 years on the date of death of Basha, therefore, he did not speak of his mother’s intimacy with Basha. However, PW.3 has categorically deposed that his mother used to ask him to call the said Basha as his father. As far as illicit intimacy of the first respondent with Ramachandra is concerned, PW.3 was with his mother at Upparavaripalle till he went to his father in the year 2000. Therefore, for about 7 to 8 years, he resided with his mother at Upparavaripalle and he was aged about 12 to 20 years during that period. Therefore, his evidence that his mother had illicit intimacy with Ramachandra cannot be doubted. Admittedly, PW.3 was residing with his mother during that period. It is not necessary to give any specific incident which made him to feel that his mother is of bad character. There was no such cross-examination with regard to specific incidents. In view of the above discussion, the finding of the learned Sessions Judge appears to be perverse and liable to be set aside. Accordingly, the revision case is allowed and the impugned order dated 22.12.2003, passed by the learned VII Additional Sessions Judge, Madanapalle, in Criminal Revision Petition No.75 of 2003, is set aside and consequently the order passed by the learned II Additional Judicial Magistrate of First Class, Madanapalle in Crl. M.P. No. 909 of 1999 in M.C. No.13 of 1986, setting aside the order passed in M.C. No. 13 of 1986, is restored. ______________________ B. CHANDRA KUMAR, J. Date: 28.08.2009 Nsr