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P.B. Prasad, J.
1. This application under Sections 397 and 401 of the Code of Criminal Procedure is directed against the judgment and order dated 15-2-1989 passed in Misc. Case No. 35/84/T.R. No. 773/88 under Section 125 Cr.P.C. by Shri N. K. Prasad, Judicial Magistrate, 1st Class, Gaya, by which the learned Magistrate has ordered the petitioner to pay a sum of Rs. 200/- per month to the opposite party towards her maintenance.
2. The opposite party Smt. Manika Roy, who claims to be the wife of the petitioner, filed an application in the Court below under Section 125 Cr. P. C. for maintenance. From the said application, it appears that the opposite party is the legally wedded wife of the petitioner. The case of the opposite party is that the petitioner wanted to marry another lady to which the opposite party objected and she filed a suit in the Court of. Munsif, Gaya. In the Trial Court as well as in the Appellate Court the Opposite party won the case. The petitioner came to this court in Second Appeal and here he lost the case. It appears that all the Courts gave concurrent findings that opposite party is the legally wedded wife of the petitioner. It appears that after the institution of the case, the petitioner neglected her and refused to maintain her. Her further case is that she is living with her mother, who is a trained nurse and is a low-paid employee and, as such, it is not possible for her mother to maintain her (opposite party). Further case of the opp. party, is that her husband (petitioner) used to visit her off and on and consequently a male child was born to her four months before the filing of the application under Section 125 Cr.P.C. Her grievance is that the petitioner neglected her and refused to maintain her and her newly born child. She prayed for a sum of Rs. 500/- per month towards maintenance.
3. After the filing of the aforesaid case, the petitioner appeared and filed show cause. He challenged the maintability of the application and further agitated that the applicant is not the legally wedded wife of the petitioner. According to him the Opposite Party is a lady of questionable character. The petitioner further denied to have ever visited her after the institution of the case and according to him the child, which was born to the Opposite Party is not the son of the petitioner. He claimed that the Opposite Party is living in adultery. According to him since the Opposite Party is not loyal to the petitioner, she is not his legally married wife and does not deserve maintenance.
4. In the Court below both parties adduced evidence in support of their respective cases. The trial Court, on consideration of evidence adduced on behalf of both parties, accepted case of opposite party and consequently ordered for payment of maintenance at the rate of Rs. 200/- per month to the Opposite Party.
5. On behalf of the petitioner, it has been contended that since the Opposite Party is living in adultery, she is not entitled to any maintenance for which he has drawn the attention of the Court to Section 125(4) Cr.P.C. which runs as follows :–
“125(4). No wife shall be entitled to receive an allowance from her husband under this Section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.”
Learned counsel for the petitioner further contended that from the evidence of Applicant Witness No. 2, it appears that after the institution of the case, the petitioner never visited the Opposite Party and, as such, the child, which was born to the Opposite Party is not the son of the petitioner.
6. On behalf of the Opposite Party, argument has been advanced that there is no reliable material on the record to hold that the Opposite Party was living in adultery. According to the learned counsel, in absence of such evidence, the petitioner is bound to maintain the Opposite Party. It has also been argued that the Opposite party is the legally wedded wife of the petitioner. It has further been contended that the fact that the Opposite Party is the wife of the petitioner gets support from Title Suit which was filed in the year 1980 bearing No. 8/80 when the petitioner wanted to marry another girl. The aforesaid Title Suit was decided in favour of the Opposite Party and in appeal also she was declared to be the legally wedded wife of the petitioner. Thereafter the petitioner preferred Second Appeal in this Hon’ble Court which was also dismissed. There are judicial findings that the Opposite Party is the legally wedded wife of the petitioner.
7. So far the argument advanced by the learned counsel for the petitioner that as the Opposite Party was living in adultery she is not entitled to any maintenance, this allegation has been denied by the learned counsel for the Opposite Party. Learned counsel for the Opposite Party has relied upon a decision is the case of Smt. Urmila Devi v. Sessions Judge and Ors. (1981 Cri. L.J. NOC 89 (All L.B.) wherein it has been held as. follows :– “Living in adultery is one thing and committing an act of adultery is another thing. Sub-section (4) does not say that the wife would not be entitled to receive the allowance if she has committed an act of adultery. On the other hand it lays stress on the fact that the wife is living in adultery which indicates that the wife is habitual in committing acts of adultery and unless this fact is established by evidence of surrounding circumstances, solitary act of adultery or an isolated lapse on the part of wife would not disentitle her to claim maintenance.”
Learned counsel for the Opposite Party has also relied upon a decision of Madras High Court in the case of Kasthuriand Ors. v. Ramasamy (1979 Cri. L.J. 741). In this decision it has been held as follows:– “The term “living in adultery” has now been consistently held to mean an out-lives in a quasi-permanent union with the man with whom she is committing adultery. If the evidence falls short of the requisite legal test there is no bar for the award of maintenance to the wife.”
Relying on the aforesaid two decisions, learned counsel for the Opposite Party has submitted that the evidence adduced by the petitioner on the point of adultery is not satisfactory and does not inspire confidence. On going through the aforesaid two decisions, it appears that there must be evidence on the record to show that the wife is living in adultery.
8. In the instant case vague allegation has been leveled against the opposite party. There is absolutely no evidence on the record to show that the Opposite Party was living in adultery. From a reading of Sub-section (4) of Section 125 Cr. P.C. it appears that there must be evidence on the record that wife is habitual in committing acts of adultery and unless this fact is established by evidence or surrounding circumstances, the vague allegation of adultery or isolated act on the part of the wife will not adversely affect for claiming maintenance.
9. In course of the argument, it transpired that the petitioner had filed a Divorce Suit on the ground of adultery but that has been dismissed meaning thereby that the allegation of adultery levelled against the Opposite Party has not been found to be true rather it has been found false. Thus there is judicial finding in favour of the Opposite Party that she was not living in adultery.
10. On going through the evidence of the witnesses of petitioner and the Opposite Party, it appears that the petitioner has miserably failed to prove that the Opposite Party is not his legally wedded wife. The allegation about living in adultery against the Opposite Party is with out any reliable material on the record.
11. In view of the discussions made above and on a careful consideration of the materials brought on the record by the parties coupled with the findings arrived earlier, there is no merit in this application. It is accordingly dismissed.