IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. M. M. O. No. 15 of 2005 Reserved on 24. 2. 2009 Date of decision: 16 .3.2009 Dinesh Kumari and others …..Petitioners Versus Umesh Sharma ……Respondent Coram: The Hon’ble Mr.Justice Surinder Singh, J. Whether approved for reporting ?1 . Yes For the petitioners: Mr. Rajinder Dogra, Advocate. For respondent Mr. V.D. Khidta, Advocate. Surinder Singh, J. In petition No. 19/4 of 2002, the learned Trial Court, allowed the petition for maintenance, preferred by the petitioners under Section 125 of the Code of Criminal Procedure vide a detailed order passed on 28.6.2004, whereby, the respondent-husband was ordered to pay the maintenance allowance @ 500/- per month to each of the petitioners herein, from the date of petition i.e., 28.9.2002. This order was challenged by the respondent-husband by filing a revision petition before the learned Sessions Judge which was allowed vide order dated 14.12.2004, and the order was set aside by reversing the order of maintenance on the ground that petitioner No. 1 Dinesh Kumari was living in adultery with Ram 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes. - 2 - Nath, their tenant and on that count alone, respondent-husband was of the hook and she had not come with true genesis of the story regarding the neglect and refusal to maintain her children also. Thus, the order was set aside. Feeling aggrieved and dissatisfied by the impugned order passed by the learned Sessions Judge, present petition has been filed under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure with a prayer that the order passed by the learned Sessions Judge be set aside and the order of the learned Chief Judicial Magistrate be restored. In reply to the petition under Section 125 of the Code of Criminal Procedure, filed by the petitioners, respondent has alleged adultery of the petitioner-wife and according to him, the minor petitioners are the outcome of the said relations with Ram Nath. It was also pleaded that his wife is earning hand. She has a shop, whereas his income is less than her’s. However, there is no denial of the fact that the petitioner Dinesh Kumari was married to the respondent. I have heard learned counsel for the parties and have carefully gone through the record of the case. Sub section (4) of Section 125 of the Code of Criminal Procedure, disentitles wife to receive an allowance for maintenance or the - 3 - interim maintenance or expense of the proceedings as the case may be, from her husband, inter alia if she is living in adultery. Significantly, in cross-examination as PW-1, Dinesh Kumari petitioner has admitted about having moved an application Ext. RW-3 to the Deputy Commissioner on the basis of which an inquiry was conducted by Sub Inspector Smt. Jaya Devi (RW-2). During the inquiry, PW-2 aforesaid had recorded the statements of Smt. Dinesh Kumari, Ram Nath, Smt. Surindera Sandhu, wife of Ram Nath (Ext. RW-2/A to C), in discharge of her official duty. No malice or interestedness has been alleged against RW-2. In his statement Ext. RW-2/A, Ram Nath had admitted the adulterous relations with Smt. Dinesh Kumari for the last about two and a half years i.e., from October, 2000. Ram Nath had admitted in his statement referred above that he was having the photographs of Dinesh Kumari which were also handed over to the Police. In fact, When respondent came to know about these illicit relations, a quarrel took place between Ram Nath and his petitioner-wife and she took poison. Ext. RW-2/B is the statement of Smt. Dinesh Kumari in which she also admitted her adulterous relations with Ram Nath who was their tenant. Whereafter a dispute arose between her and her husband, she consumed poison and report - 4 - was lodged in Police Post Gunughat (Nahan). Thereafter Ram Nath had started causing trouble to her and it was this reason she moved an application to the Deputy Commissioner on which inquiry was conducted by Sub-Inspector RW-2 aforesaid. Even Surinder Sandhu wife of Ram Nath corroborated this version of adulterous relations of Dinesh Kumari with her husband Ram Nath. Further, Learned Sessions Judge took note of the letters Ext. RW-4 to Ext. RW-23 exchanged between Dinesh Kumari and Ram Nath aforesaid, which have been admitted to be correct by Dinesh Kumari petitioner No. 1, herself. Thus, in the aforesaid circumstances, it can safely be held that the respondent was able to prove the continued adultery of his wife with Ram Nath for the last so many years, which cannot be said to be an isolated incident. The petitioner Dinesh Kumari and the respondent are stated to be living under one roof but in a separate accommodation and she had also been receiving the rent from the tenants as admitted by her in cross- examination. This apart, there is also an admission made by her that she was running a tailoring shop at Kolar wherein she was also running a Maniari Shop and was earning Rs. 700/- per month whereas, respondent had been running a shop in a very small portion. - 5 - In the above circumstances, in my considered opinion, the wife was rightly declined maintenance and respondent is not under an obligation to maintain her. In so far as the minor petitioners are concerned, they have taken birth during the subsistence of the marriage of petitioner No. 1 with the respondent. Their ages are more than the period of alleged adultery. The daughter is stated to be in Navodaya School whereas male child is studying and residing with respondent. But the defense taken by the respondent that both are the result of adulterous relations with Ram Nath, stands not proved as the respondent has failed to prove the non-access in accordance with law and denial of their relationship by the respondent is enough to prove the neglect and refusal. Therefore, in my considered opinion, denial of maintenance amount to the minor petitioners would cause injustice to them. Thus, for the aforesaid reasons, the order of the learned Sessions Judge denying the maintenance to the petitioner-wife is legally and factually sustainable however, no convincing reasons have been advanced by the learned Sessions Judge for reversing the order of maintenance in favour of the minor petitioners, accordingly, to this extent, order of the learned Sessions Judge is reversed and that of the learned Trial Court - 6 - is restored and minor petitioners are held entitled to the maintenance amount @ 500/- per month from the respondent from the date of petition before the learned trial Court i.e., 28.9.2002, which shall be deposited by the respondent by opening a Bank account in the names of the minor petitioners, in any nationalized Bank at Nahan and the amount shall be released for the maintenance and education of the minor petitioners on furnishing the proof for justifying the release of the amount so deposited. The petition is partly allowed to the above extent. Send down the records. March 16, 2009 (Surinder Singh),J. (cm)