IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 1ST JANUARY 2009 / 11TH POUSHA 1930 RPFC.No. 40 of 2004() --------------------- M.C.NO.81/99 OF Family Court, KOLLAM (S): REVISION PETITIONER/COUNTER PETITIONER ---------------------------------------------------------- RAJENDRAN, PUTHEN KANDATHIL VEEDU, KADATHOOR MURI, KULASEKHARAPURAM VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S): PETITIONERS -------------------------- 1. REMA, THADASSERRY THOPPIL VEEDU, VADAKKUMTHALA, MOKKUMMURI, PONMANA VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT. 2. ATHIRA @ RAJI (MINOR), DO. DO. 3. AYYAPPAN @ RAJ, (MINOR), DO. DO. (RESPONDENTS 2 AND 3 ARE RESPRESENTED BY THE 1ST RESPONDENT WHO IS THE MOTHER AND GUARDIAN) ADV. SRI.R.RAJASEKHARAN PILLAI THIS REV.PETITION(FAMILY COURT) HAVING BEEN FINALLY HEARD ON 01/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ---------------------- R.P.F.C.No.40 of 2004 ---------------------------------------- Dated this the 1st day of January 2008 O R D E R The petitioner in this R.P.F.C assails an order directing him to pay maintenance at the rate of Rs.300/- per mensum to the first claimant, his wife. 2. Marriage is admitted. Altogether there were three claimants. Paternity of the second claimant is also admitted. There was a contention raised that the third claimant/second child was not the biological child of the petitioner. It was contended further that the second petitioner was in the custody of the petitioner and was being maintained by him. 3. To cut a long story short, the learned Judge of the Family Court, on the materials placed before him, came to the conclusion that the second claimant was residing with the petitioner and was being looked after by him. So far as the second child/third claimant is concerned, the court took the view that it has not been established that the petitioner is the father of the said child. Maintenance was thus not granted for both minor children. On the evidence made available before court, it R.P.F.C.No.40/2004 2 was concluded that, at the relevant time when the third child could have been conceived, there was non-access and no possibility of a sexual intercourse between the petitioner and the first claimant. Thus, a finding was entered that the child born to the first claimant was not that of the petitioner. 4. A petition for divorce on the ground of adultery was filed by the petitioner. The same was pending. The learned counsel for the petitioner is not able to tell the court the fate of that petition for divorce on the ground of adultery. There is no representation for the respondents/claimants. 5. To successfully resist a claim for maintenance on the ground of adultery, it is now trite that an isolated act of adultery is not sufficient. It must be proved not only that the wife was guilty of adultery; but it must be shown that she is living in adultery. Of course, whether a woman is living in adultery, does not depend upon the number of instances of adulterous sexual relationship. It is idle to expect the husband to keep correct account of the number of such instances. But the question is whether in a given case, it was only an isolated act of indiscretion or it was a conscious act of adulterous behaviour. The law is very certain. While one act of adultery may justify R.P.F.C.No.40/2004 3 grant of divorce under the personal law applicable to the parties, maintenance can be resisted successfully only if it is shown that the spouse/wife was “living in adultery”. There must therefore definitely be proof of the wife “living in adultery”. I have been taken through the relevant averments in the petition as also the relevant documents. Ext.X1 clearly reveals that even after the petitioner returned from his place of employment abroad on 16/2/1998 till the child was born on 08/08/1998, there was absolute harmony between the spouses. Ext.X1 is in this context eloquent. There is not a semblance of material to show that the first claimant was “living in adultery”. Of course, the finding of the court below which is not seen challenged by the wife clearly shows that she was guilty of the matrimonial mis-conduct of at least one instance of adultery in having given birth to a child of some other and not the petitioner. 6. The million dollar question is whether the fact that the wife had given birth to a child of another during the currency of the matrimony with the petitioner is sufficient to disentitle her of her right to claim maintenance. 7. To me, it appears that the law is very definite and certain. Not an isolated act of adultery but a course of conduct R.P.F.C.No.40/2004 4 of “living in adultery” must be proved by the husband to successfully resist the claim for maintenance. In the instant case, the wife at all relevant time, in the absence of the petitioner, was admittedly residing at the matrimonial home with his mother. There is no contention that anyone prior to the birth of the child, even suspected her matrimonial fidelity. In these circumstances, I am of the opinion that there is significant absence of evidence to conclude that the claimant/wife was living in adultery and consequently is not entitled to maintenance under Section 125 Cr.P.C. The situation may be unfortunate. After entering a finding that the child born to the first claimant is not that of the petitioner/husband, the court is awarding maintenance for the wife. The purpose of Section 125 Cr.P.C must be clearly borne in mind. It is not to insist and enforce matrimonial obligations that Section 125 Cr.P.C has been enacted. It is only to prevent vagrancy. That is why while an isolated act of adultery would entitle the spouses for a decree for divorce; but to successfully resist the claim for maintenance under Section 125 Cr.P.C, the law obliges the husband to prove that his wife is living in adultery. The evidence in the case significantly falls short of the requirement to prove that the wife R.P.F.C.No.40/2004 5 was living in adultery. Notwithstanding the fact that the wife is shown to be guilty of giving birth to a child not of the petitioner during the currency of the matrimony with the petitioner, I am afraid, the wife must be held to be entitled for maintenance under Section 125 Cr.P.C, there being not a scintilla of evidence to show that the wife was living in adultery at any point of time prior to the commencement of separate residence. 8. I am, in these circumstances, of the opinion that the impugned order does not suffer from any such vice as to warrant the invocation of the revisional jurisdiction of superintendence and correction. 9. Maintenance amount awarded does appear to be absolutely reasonable and the quantum of maintenance fixed does not also hence warrant interference. 10. In the result, this R.P.F.C is dismissed. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge R.P.F.C.No.40/2004 6 R.P.F.C.No.40/2004 7 R.BASANT, J R.P.F.C.No. ORDER 11/02/2008