IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 19.09.2008 CORAM THE HONOURABLE MR. JUSTICE K.N.BASHA CRL.OP.No.12508 of 2004 Jhonson Kennedy .. Petitioner Versus Margaret Rita .. Respondent Prayer : Petition filed under section 482 Cr.P.C., seeking to set aside the order dated 17.07.2003 made in Cr.Rc.No.3/2003 on the file of the learned Sessions Court, Nilgiris reversing the judgment made in MC.No.9/2002 dated 07.01.2003 made on the file of the learned Judicial Magistrate, Udhagamandalam, Nilgiris. For Petitioner : Mr.Suresh Viswanath For Respondent : Ms.Vishnu Priya Upendran Legal Aid Counsel O R D E R The petitioner, who is the husband of the respondent/wife, has come forward with this petition seeking for the relief of quashing the order made in Crl.RC.No.3/2003 dated 17.07.2003 on the file of the learned Sessions Judge, Udhagamandalam, Nilgiris, reversing the order made in MC.No.9 of 2002 on the file of the learned Judicial Magistrate, Udhagamandalam, Nilgiris, dated 07.01.2003 dismissing the petition filed by the respondent/wife for maintenance under section 125 Cr.P.C. 2.Mr.Suresh Viswanath, learned counsel for the petitioner vehemently contended that the learned Sessions Judge has committed a serious error of law in reversing the well considered order of the learned Judicial Magistrate, Udhagamandalam, in dismissing the maintenance petition filed by the respondent/wife under section 125 Cr.P.C. It is contended that the learned Trial Magistrate has categorically held on the basis of the materials produced before the court below that the respondent/wife was living in adultery and as such, she is not entitled to claim maintenance from the petitioner herein under section 125[4] Cr.P.C. The learned counsel would further contend that the petitioner being the https://hcservices.ecourts.gov.in/hcservices/ husband has discharged his burden of proving the allegation of her wife living in adultery by producing and marking the documents, viz., Exs.R.1 to 4, the letter written by the respondent/wife, medical prescription and two letters said to have been written by the respondent/wife disclosing that the respondent has admitted in her letters that she was living in adultery with some other person, viz., one Dr.Kalaivanan. It is contended that though the respondent during the course of cross-examination admitted in writing, in the letters, viz., Exs.R-1,3 and 4, it is stated that those letters have been obtained by threat and coercion. But she has not given any complaint to any police and as such, the respondent has not come forward with the true version. It is contended that if the version of the respondent is true, she could have very well given the complaint. The respondent has not produced the same before the court which falsifies the version of the respondent. Therefore, it is contended by the learned counsel for the petitioner that the learned Trial Magistrate has rightly placed reliance on the letters, Exs.R1,3 and 4 in arriving at a conclusion the respondent was living in adultery and as such, she is not entitled to claim maintenance as per provision 125[4] Cr.P.C. 3.The learned counsel for the petitioner would further submit that the learned Appellate Court Judge has completely overlooked the reasons assigned by the learned Magistrate based on materials available on record and reversed the order of the learned Trial Magistrate on mere surmise and conjectures without considering the reasons assigned by the learned Trial Magistrate. As such, it resulted in a serious miscarriage of justice to the petitioner which warranted the petitioner to invoke the inherent powers of this court under section 482 Cr.P.C. Therefore, it is contended that the order passed by the learned Sessions Judge in criminal revision case is liable to be set aside and the order of the learned Trial Magistrate dismissing the petition filed by the respondent/wife under section 125[4] Cr.P.C. is to be restored. 4.The learned counsel for the petitioner would also place reliance on the following decisions:- (1)CHANDRAKANT GANGARAM GAWADE Vs. SULOCHANA CHANDRAKANT GAWADE AND OTHERS (1997 Crl.L.J.520 – Bombay High Court) (2)NARANATH THAZHAKUNIYIL SANDHA Vs. KOTTAYAT THAZHAKUNIYIL NARAYANAN (1999 Cri.L.J. 1663) (3)LAXMAN NAIK Vs. NALITA @ LALITA NAIK (2002 Crl.L.J.3418) and (4)NIRMALDAS R.ALHAT Vs. SUNITHA N.ALHAT AND OTHERS (2006 Crl.L.J.2635). https://hcservices.ecourts.gov.in/hcservices/ 5.Per contra, Ms.Vishnu Priya Upendran, learned counsel for the respondent appearing as Legal Aid Counsel would also vehemently contend that there is no infirmity or illegality in the order passed by the learned Sessions Judge and the learned Sessions Judge has rightly reversed the order passed by the trial court. It is contended that the husband/petitioner of the respondent having raised the allegation of "living in adultery" and he has not proved the same by producing acceptable evidence and also by eliciting answers from the cross-examination of the respondent/wife. It is contended that the respondent/wife has emphatically denied the suggestion to the effect that she has written the letters, viz., Exs.R1,3 and 4 to the effect that she was "living in adultery" with another person and she has categorically stated that those letters were obtained by threat and coercion. Therefore, it is contended that in view of such a denial, it is the burden of the husband to prove the allegation by producing acceptable evidence. It is further contended that even assuming if not admitting that the respondent was "living in adultery", the version of the petitioner/husband clearly shows that as per the letters Exs.R.1, 3 and 4 that the respondent/wife was said to have written that she had been to lodge for some time with another person and that itself would not satisfy the requirement contemplated under section 125[4] Cr.P.C., viz., "LIVING IN ADULTERY". It is vehemently contended by the learned counsel for the respondent that the solitary instance or one or two occasions of adultery said to have been committed by the respondent/wife by itself would not disentitle her to claim maintenance. 6. It is submitted that several High Courts including this court has categorically held that the word used under section 125 [4] Cr.P.C., viz., "LIVING IN ADULTERY" means that it should be a continuous act of commission of adultery and the petitioner/husband should prove by acceptable evidence that the respondent/wife was continuously "living in adultery". The learned counsel for the respondent in support of her contentions, placed reliance on the following decisions:- (1)KASTHURI AND OTHERS Vs. RAMASAMY (1979 Cri.L.J 741) ; (2)BASISHNAB CHARAN Vs. RITARANI JENA (1993 Cri.L.J.238) ; (3)PANDURANG BARKU NATHE Vs. LEELA PANDURANG NATHE (1997 Cri.L.J. 3976) ; and (4)CHANDRAKANT GANAGARAM GAWADE VS. SULOCHANA GAWADE (1997 Cri.L.J.520) 7.I have carefully considered the rival contentions put forward on either side and thoroughly scrutinised the materials on https://hcservices.ecourts.gov.in/hcservices/ record including the petition, counter and the orders passed by the courts below, viz., the lower Appellate court Judge and the learned trial Magistrate. 8.At the outset, it is to be stated that both the learned counsel for the petitioner and the learned counsel for the respondent made very effective and impressive arguments by placing reliance on the materials available on record as well as placing reliance on the decisions of the various High Courts. 9.The main question involved in this matter is whether the respondent, being the wife of the petitioner/husband, is entitled to claim maintenance under section 125 Cr.P.C. and whether she is dis-entitled or dis-qualified to claim maintenance under section 125[4] Cr.P.C. as she has been alleged to have been "living in adultery" and whether the petitioner/husband proved by adducing acceptable evidence to the effect that the respondent/wife was "living in adultery". 10.In order to consider the above said question, this court has to necessarily look into materials available on record, more particularly, the maintenance petition and the counter coupled with the evidence of the petitioner/husband as well as the respondent/wife. It is seen that the petitioner/husband mainly opposed the maintenance petition on the ground that the respondent is "living in adultery". The fact remains from the perusal of the counter filed by the petitioner is to the effect that not a whisper made about the so-called letters, viz., Exs.R.1, 3 and 4, said to have been written by the respondent/wife except making a bald and vague allegation to the effect that the respondent/wife was "living in adultery" and apart from such lapse, there is also no specific mention about any particular instance wherein, the petitioner/husband is said to have seen the respondent in company of any other person. The learned Trial Magistrate has simply brushed aside such lapse on the part of the petitioner/husband and proceeded on the basis of the answers elicited from the respondent/wife to the effect that she has admitted herself in writing the letters forgetting and ignoring for a moment that she has emphatically denied to the effect that she has not voluntarily written those letters and more particularly, she has categorically stated that those letters were obtained due to threat and coercion. 11.This court also cannot lost sight to the effect of the fact about what necessitated or prompted or compelled the respondent/wife to give such letters in writing amounting to a confession of "living in adultery". A perusal of the evidence of the petitioner/husband clearly shows that he was not able to state under what circumstances the so-called letters, Exs.R.1, 3 and 4 https://hcservices.ecourts.gov.in/hcservices/ were written by the respondent/wife. He has stated in his cross examination that he is not even able to remember the dates on which those letters, Exs.R.1, 3 and 4 were written or given to him. The evidence of the petitioner/husband who examined himself as RW-1 is also bereft of any materials in respect of the necessity for the respondent to write the so-called letters, Exs.R1, 3 and 4. This court is constrained to state that the learned Trial Magistrate has simply overlooked and brushed aside the evidence of RW-1 and simply placed reliance on such answers in the evidence of the respondent/wife who examined herself as P.W.1 and even ignoring the emphatic denial of the respondent/wife to the effect that those letters, Exs.R1, 3 and 4 are not written voluntarily on her own, but the said letters were written only due to threat and coercion of the petitioner. It is seen that the learned Trial magistrate has drawn adverse inference against the respondent/wife by not producing the complaint given by her to the police to the effect that the letters, Exs.R.1, 3 and 4 were written out of threat and coercion. It is well settled that once the husband alleges that the wife is "living in adultery", the burden lies on the husband to prove the same by producing acceptable evidence before the court in accordance with law. Therefore, it is crystal clear from the facts and circumstances of the case, the petitioner being the husband, has miserably failed to prove the allegation of the respondent/wife "living in adultery". 12. Now, coming to the question of law, both the learned counsel made several submissions by placing reliance on the decisions of this court as well as other High Courts. This court in KASTHURI AND OTHERS Vs. RAMASAMY reported in 1979 Cri.L.J 741 [cited supra] has held in paragraph 8 that:- "8.The next contention is that the petitioner is living in adultery with Varadarajan and therefore, the trial court was right in rejecting her application for maintenance. The term 'living in adultery' has engaged the attention of many courts. In Ramsaran Vs. Soman Wati [1964] 1 Cr.L.J. 483 [Punj.] Tekchand J, observes [at p.486]:- " 'Living in Adultery' is living together as husband and wife and exercising sexual rights and duties implied by such relation when legally created. Proof of occasional acts of illicit intercourse may fall short of what is intended by the expressions 'living in adultery'. It suggests a man and the wife of another, living continually as husband and wife. An adulterous intercourse https://hcservices.ecourts.gov.in/hcservices/ is a condition contemplating repetition of extra marital relationship when opportunity offers itself. It is a condition of cohabitation in contradistinction to occasional acts. The wife forefeits her right to be maintained on proof of repeated adulterous meetings." In Kista Piljai Vs. Amirthammal AIR 1938 MAD 833 : [39 Cri.L.J.951], Pandrang Row, J. laid down with specific reference to S.488 Cri.P.C. [old code] that the words 'living in adultery' are indicative of the principle that occasional lapses from virtue, are not sufficient and it must be shown that the wife was actually living in adultery with someone els, at or about the time of the application, which disentitles her to receive maintenance. The learned Judge observed :- "Continued adulterous conducts is what is meant by living in adultery". With respect, I agree these observations. The term 'living in adultery' has now been consistently held to mean an outright adulterous conduct where the wife lives in a quasi-permanent union with the man with whom she is committing adultery. In this case, even the allegations do not furnish prima facie proof of conduct of what is within the contemplation of the law to deprive the wife of her right to be maintained. The evidence adduced falls short of the requisite legal test." The above decision of this court makes it crystal clear that the continuous adulterous conduct is what is meant by "living in adultery" and this court further held in the above decision that the term "living in adultery" means "an outright adulterous conduct where the wife lives in a quasi-permanent union with the man with whom she is committing adultery". 13.The Orissa High Court in BASISHNAB's case [cited supra] 1993 Cri.L.J.238 has held that :- "......... As held in the case of Smt.Rachita Rout [Supra] merely proving one or more instances of lapses in the character of the wife is not sufficient to absolve the husband from his liability to pay maintenance to her. Therefore, even assuming that the instances alleged by the https://hcservices.ecourts.gov.in/hcservices/ petitioner are held to have been established still he will not be entitled to succeed to deny his liability for payment of maintenance. The entitlement of the opposite party to maintenance which flows from the marital relationship, which is admitted in this case, subsists." 14. The Bombay High Court in PANDURANG NARKU NATHE's case [cited supra] 1997 Cri.L.J.3976 has held in paragraph 8 that :- "8.In my view the expression "living in adultery" in the sense in which it is used in section 125 Cr.P.C., connotes a wife living perpetually or semi perpetually as a wife with a male; other than her husband and having sexual relations with him. Sporadic instances of sexual relationship between a wife and a person other than her husband, would not fall within the ambit of the expression "living in adultery". Laymen invariably and men of law often treat the concept of wife living in adultery as synonymous with a wife occasionally committing adultery. The two are distinct and if the distinction is overlooked as it has been by the trial court, the result would be gross miscarriage of justice. It is only a wife living in adultery who is entitled for maintenance u/s.125[4] Cr.P.C.; a wife who is occasionally guilty of committing adultery would not forfeit her claim for maintenance under the said section." 15. The Andhra Pradesh High Court, by placing reliance on the Division Bench decision of the Karnataka High court in P.SUBRAMANIAM Vs. T.T.PONNAKSHIAMMAL AIR 1958 Mys.41 : [1958 Cri.L.J. 397], in ALETI JAGADISHWARI V. ALETI BIKSHAPATHY reported in 1998 Cri.L.J.2503 has held that:- "after careful consideration of the law on the point, we are of the opinion that it is not a stray act or two of adultery that disentitles a wife from claiming the maintenance from her husband; but it is a course of continuous conduct on her pary by which it can be called that she is living an adulterous life that takes away her right to claim the said maintenance. It is significant to note that the wording in section 488[4] of the Cr.P.C., is not 'if she commits adultery' but 'if she is living in adultery'. To https://hcservices.ecourts.gov.in/hcservices/ our mind there is a certain amount of emphasis on the term 'living'. A mere lapse, whether it is one or two, and a return back to normal life cannot be said to be living in adultery. If the lapse is continued and followed up by a further adulterous life, the woman can be said to be 'living in adultery'." 16. The settled positions of law as emerged from the decisions cited supra are to effect that, (i)"Continued adulterous conducts is what is meant by 'living in adultery' " and "proof of occasional acts of illicit intercourse may fall short of what is intended by the expressions 'living in adultery' ". (ii)'living in adultery' held to mean an outright adulterous conduct where the wife lives in a quasi-permanent union with the man with whom she is committing adultery. (iii)"living in adultery" as per Section 125 (4) Cr.P.C. connotes a wife living perpetually or semi perpetually as a wife with a male other than her husband and having sexual relations with him and sporadic instances of sexual relationship between a wife and a person other than her husband, would not fall within the ambit of the expression "living in adultery". 17. If the materials available on record in the instant case is tested in the light of the above well settled principles of law laid down in the decisions cited supra, then this Court has no hesitation to hold that the petitioner/husband has miserably failed to prove and discharge his burden of proving that the respondent/wife was "living in adultery" as contemplated under Section 125 (4) Cr.P.C. 18. At the risk of repetition, this Court is constrained to reiterate the following features, viz., i.there is absolutely no material available on record to disclose that the respondent/wife was "living in adultery" within the meaning of Section 125(4) Cr.P.C. as the petitioner has not whispered a word about the so- called letters, Exs.R.1, 3 and 4 said to have been written by the respondent/wife in the counter to the maintenance petition ; ii.there is absolutely no explanation from the petitioner that what necessitated or prompted or compelled the respondent/wife of the petitioner to write such letters, Exs.R.1, 3 and 4 ; iii.the petitioner in his evidence has categorically admitted that he is not able to state the dates on which https://hcservices.ecourts.gov.in/hcservices/ the respondent/wife said to have written those letters and has also not whispered a word under what circumstances such letters were written to him ; iv.the respondent/wife emphatically denied that she has not written those so-called letters, Exs.R.1, 3 and 4 willingly and voluntarily and only due to threat and coercion she was compelled to write those letters at the instance of the petitioner/husband ; and lastly v.by no stretch of imagination it could be stated that any wife would admit her guilt of having relationship with third person in writing to her husband ; All these aspects were very well considered by the learned lower appellate Court Judge by assigning clear, cogent and categorical reasons by allowing the revision filed by the respondent/wife and setting aside the trial court order. Therefore, this Court is of the considered view that there is no infirmity or illegality warranting interference of this Court in the impugned order passed by the lower appellate Court. 19. For the aforesaid reasons, this petition is liable to be dismissed and accordingly, the petition is hereby dismissed as devoid of merits. 20. Before parting with the petition, this Court is constrained to place it on record of appreciation to the learned counsel for the petitioner as well as to the learned counsel for the respondent/Legal Aid Counsel. Ms.Vishnu Priya Upendran, learned counsel, having appeared as a Legal Aid counsel for the respondent in this matter has also taken pain and submitted her arguments effectively by not only placing reliance on the facts but also by citing several decisions of various High Courts. Ms.Vishnu Priya Upendran, is entitled to receive a sum of Rs.2,500/- as remuneration from the Tamilnadu Legal Aid Services Authority, High Court, Madras. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ap/gg https://hcservices.ecourts.gov.in/hcservices/ To 1. The Sessions Judge Udhagamandalam, Nilgiris. 2. The Judicial Magistrate Udhagamandalam, Nilgiris. 3. The Secretary, Tamilnadu Legal Aid Services Authority High Court, Chennai. 1 cc to Mr.M. Suresh viswanthan, Advocate, Sr. 53912 1 cc to Vishnu Priya upendran, Advocate, SR. 53794 Crl.O.P.No.12508/2004 MS (CO) kk 15/12 https://hcservices.ecourts.gov.in/hcservices/