Tag Archives: Adultery

Wife CANNOT prosecute husband for adultery (S 497 IPC) Classic Justice PARDIWALA, Guj HC judgement

Section 497 IPC confers upon the husband the right to prosecute the adulterer but, it does not confer any right upon the wife to prosecute the woman with whom her husband has committed adultery. Section 497 IPC does not confer any right on the wife to prosecute the husband who has committed adultery with another woman. Further, A man who commits the sexual intercourse with a prostitute or an unmarried woman or with a widow or with the consent or connivance of the husband of the woman with whom sexual intercourse is committed, is not guilty of adultery..

Notes / Excerpts
* wife who losses her earlier criminal case comes back claiming that her husband is living in Adultery. She files a criminal case (u/.s 497 IPC) against her husband, father in law and another alleged partner of her husband !!
* the Honourable court analyses the entire case, the elements of sec 497 IPC and sec 198 CrPC and orders as follows :
“…13. Section 497 IPC confers upon the husband the right to prosecute the adulterer but, it does not confer any right upon the wife to prosecute the woman with whom her husband has committed adultery. Section 497 IPC does not confer any right on the wife to prosecute the husband who has committed adultery with another woman. ….”
“…Section 497 IPC also does not take in cases where the husband has sexual relations with an unmarried woman (like as alleged in the present case)…”
* the honourable court goes on to say “…14. The law, in my view is very clear. A man who commits the sexual intercourse with a prostitute or an unmarried woman or with a widow or with the consent or connivance of the husband of the woman with whom sexual intercourse is committed, is not guilty of adultery. …”
*…Supreme Court in the case of V. Revathi Vs. Union of India, reported in AIR 1988 SC 835, wherein the Supreme Court observed in paragraphs 3, 4 and 5 as under:- “3 .Be it realised that S. 497, Penal Code, is so designed that a husband cannot prosecute the wife for defiling the sanctity of the matrimonial by committing adultery. Thus the law permits neither the husband of the offending wife to prosecute his wife nor does the law permit the wife to prosecute the offending husband for being disloyal to her. Thus both the husband and the wife are disabled from striking each other with the weapon of criminal law..”

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 22748 of 2015

FOR APPROVAL AND SIGNATURE : HONOURABLE MR.JUSTICE J.B.PARDIWALA

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VINOD SAMAT PATARIYA & 2….Applicant(s)
Versus
STATE OF GUJARAT & 1….Respondent(s)
Appearance:
MR AD DESAI, ADVOCATE for the Applicant(s) No. 1 – 3
MS.P J.JOSHI, ADVOCATE for the Applicant(s) No. 1 – 3
MR. H.K. PATEL, ADDL.PUBLIC PROSECUTOR for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 12/01/2016

ORAL JUDGMENT

JUDGMENT

 

  1. By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicants seek to invoke the inherent powers of this Court praying for quashing of the Criminal Case No. 301/15, filed in the Court of the learned Judicial Magistrate First Class, Mandvi, Kutch, arising from a private complaint lodged by the respondent No.2 herein for the offence punishable under Sections 497 read with 114 of the IPC.
  2. The case of the complainant may be summarised as under:-
    • 2.1 The respondent No.2 got married with the applicant No.1 on 8.7.2010. It appears that soon thereafter matrimonial disputes cropped up between the husband and the wife. The respondent No.2 thought fit to lodge an FIR against the applicants Nos.1 and 2 and other co-accused. The prosecution instituted by the respondent No.2 through the State culminated in Criminal Case No. 27/11 and the same resulted in the judgment and order of acquittal dated 29th September, 2014, passed by the learned JMFC, Mandvi, Kutch.
    • 2.2 Soon thereafter, the respondent No.2 thought fit to file a private complaint dated 4.4.2015 against the applicant No.1 i.e. the husband, the applicant No.2 i.e., the father-in-law and the applicant No.3, the lady with whom the applicant No.1 is alleged to be in an illicit relationship. It is the case of the complainant that being a married man, the husband is in an illicit relationship with the applicant No.3 herein and is living an adulterous life. It is her case that the applicant No.2 being the father of the applicant No.1 has abetted the commission of the offence. In the same manner, it is alleged that the applicant No.3 has also abetted the commission of the offence of adultery, as she is in an illicit relationship with a married man.
  3. The learned Magistrate thought fit to take cognizance upon the said complaint and ordered issue of process against the applicants herein for the offence punishable under Sections 497 read with 114 of the IPC.
  4. Being dissatisfied, the applicants herein have come up with this application praying for quashing of the proceedings of the criminal case.
  5. Ms. P.J. Joshi, the learned advocate appearing for the applicants vehemently submitted that the learned Magistrate committed a serious error in taking cognizance upon the complaint and ought not to have issued process for the offence punishable under Sections 497 read with 114 of the IPC. Ms. Joshi submitted that indisputably, the applicant No.3 with whom the applicant No.1 is alleged to be in an illicit relationship, is an unmarried lady. She submitted that even if the entire case of the complainant is accepted as true, none of the ingredients to constitute the offence punishable under Section 497 of the IPC are spelt out. She further submitted that the respondent No.2 in her capacity as the wife of the applicant No.1 has no locus to file a complaint for the offence of adultery.
  6. The respondent No.2, although served with the notice issued by this Court, yet has chosen not to remain present either in person or through an advocate and oppose this application.
  7. The learned APP Mr. H.K. Patel appearing for the State of Gujarat submitted that no error could be said to have been committed by the learned Magistrate in issuing the process against the applicants for the offence punishable under Sections 497 read with 114 of the IPC.
  8. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the complaint is maintainable in law.
  9. Section 497 of the IPC reads as under: Adultery : Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.
  10. According to the definition of adultery referred to above, and in order to constitute an offence of adultery, three essential ingredients are necessary. (i) Sexual intercourse by a man with a woman who is and whom he knows or has reason to believe to be the wife of another man; (ii) Such sexual intercourse must be without the consent or connivance of the husband and (iii) Such sexual intercourse must not amount to rape.
  11. Thus, to bring home an offence under Section 497 IPC, the prosecution is to prove (a) that the complainant had married a girl; (b) that a male person outside the aforesaid wedlock had sexual intercourse with the wife of the complainant; (c) that such sexual intercourse did not amount to rape i.e. to say if the wife was above 16, the aforesaid sexual intercourse was consensual. If the said wife be below sixteen whether the coitus with her consent or without, the offence would come under the realm of rape punishable under Section 376 IPC.
  12. Section 198 of the Cr. P.C is with regard to the prosecution for offences against marriage. Section 198 clause (2) along with the proviso reads as under:-
    • 198. Prosecution for offences against marriage
    • (1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code except upon a complaint made by some person aggrieved by the offence :
    • Provided that-
      • (a) where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf;
      • (b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him for obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub-section (4) may make a complaint on his behalf;
      • (c) where the person aggrieved by an offence punishable under a [section 494 or section 495] of the Indian Penal Code is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father’s or mother’s brother or sister b [or, with the leave of the Court, by any other person related to her by blood, marriage or adoption].
    • (2) For the purposes of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code :Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.
    • (3) When in any case falling under clause (a) of the proviso to sub-section (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.
    • (4) The authorisation referred to in clause (b) of the proviso to sub-section (1), shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be counter-signed by his Commanding Officer, and shall be accompanied by a certificate signed by that Officer to the effect that leave of absence for the purpose of making a complaint in person cannot for the time being be granted to the husband.
    • (5) Any document purporting to be such an authorisation and complying with the provisions of sub-section (4), and any document purporting to be a certificate required by that sub-section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence.
    • (6) No Court shall take cognizance of an offence under S. 376 of the Indian Penal Code, where such offence consists of sexual intercourse by a man with his own wife, the wife being under c [eighteen years of age], if more than one year has elapased from the date of the commission of the offence. (7) The provisions of this section apply to the abetment of, or attempt to commit, an offence as they apply to the offence.
  13. Section 497 IPC confers upon the husband the right to prosecute the adulterer but, it does not confer any right upon the wife to prosecute the woman with whom her husband has committed adultery. Section 497 IPC does not confer any right on the wife to prosecute the husband who has committed adultery with another woman. Section 497 IPC also does not take in cases where the husband has sexual relations with an unmarried woman (like as alleged in the present case). It is the first principle of criminal law that where a statute creates a criminal offence, the ingredients of that criminal offence must be strictly proved.
    • The Supreme Court in the case of Smt. Sowmithri Vishnu Vs. Union of India, reported in AIR 1985 SC 1618(1) observed in paragraph 11 as under:- “11. Though it is true that the erring spouses have no remedy against each other within the confines of Section 497 of the Penal Code, that is to say, they cannot prosecute each other for adultery, each one has a remedy against the other under the civil law, for divorce on the ground of adultery. ‘Adultery’ under the civil law has a wider connotation than under the Penal Code. If we were to accept the argument of the petitioner, Section 497 will be obliterated from the statute book and adulterous relations will have a more free play than now. For then, it will be impossible to convict anyone of adultery at all. It is better, from the point of view of the interests of the society, that at least a limited class of adulterous relationship is punishable by law. Stability of marriages is not an ideal to be scorned.”
  14. The law, in my view is very clear. A man who commits the sexual intercourse with a prostitute or an unmarried woman or with a widow or with the consent or connivance of the husband of the woman with whom sexual intercourse is committed, is not guilty of adultery. This may not be applicable when it comes to seeking divorce by the wife or the husband, as the case may be, on the ground of living an adulterous life.
  15. I may also quote with profit a decision of the Supreme Court in the case of V. Revathi Vs. Union of India, reported in AIR 1988 SC 835, wherein the Supreme Court observed in paragraphs 3, 4 and 5 as under:-
    “3 .Be it realised that S. 497, Penal Code, is so designed that a husband cannot prosecute the wife for defiling the sanctity of the matrimonial by committing adultery. Thus the law permits neither the husband of the offending wife to prosecute his wife nor does the law permit the wife to prosecute the offending husband for being disloyal to her. Thus both the husband and the wife are disabled from striking each other with the weapon of criminal law. The petitioner wife contends that whether or not the law permits a husband to prosecute his disloyal wife,the wife cannot be lawfully disabled from prosecuting her disloyal husband. And that in so far as and to the extent S. 198(2), Criminal P.C., operates as a fetter on the wife in prosecuting her adulterer husband, the relevant provision is unconstitutional on the ground of obnoxious discrimination, she asserts.
    4. This very argument came to be debated before a Bench of this Court in Sowmithri Vishnu v. Union of India, 1985 (Suppl) SCC 137 : (AIR 1985 SC 1618) in the context of a challenge to the constitutionality of S. 497 2, Penal Code by an adulterer who had been prosecuted for the offence of adultery under S. 497 2, Penal Code, by the husband of the adulteress. Three grounds were pressed into service in support of the challenge rooted in Art. 14 of the Constitution in Sowmithri Vishnu’s case (supra). Ground No. 2 was in the following terms :- 2. “497. Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.” “Section 497 does not confer any right on the wife to prosecute the husband who has committed adultery with another woman.”
    This ground of challenge has been dealt with by this Court in Para 8 of the said judgment wherein Chandrachud, C.J. spoke thus on behalf of the Court :- “In so far as the second of the three grounds is concerned, S. 497 does not envisage the prosecution of the wife by the husband for ‘adultery’. The offence of adultery as defined in that section can only be committed by a man, not by a woman. Indeed the section provides, expressly that the wife shall not be punishable even as an abettor. No grievance can then be made that the section does not allow the wife to prosecute the husband for adultery. The contemplation of the law, evidently is that the wife, who is involved in an illicit relationship with another man, is a victim and not author of the crime. The offence of adultery as defined in S. 497, is considered by the legislature as an offence against the sanctity of the matrimonial home, an act which is committed by a man, as it generally is. Therefore, those men who defile that sanctity are brought within the net of the law. In a sense, we revert to the same point : Who can prosecute whom for which offence depends firstly, on the definition of the offence and, secondly, upon the restriction placed by the law of procedure on the right to prosecute.”
    Thus this very argument has already been repulsed by this Court, albeit, in the context of the challenge to S. 497, Penal Code. The same bullet has now been fired in order to assail S. 198(2), Criminal P.C., in so far as it confines the right to prosecute the adulterer to the aggrieved husband of the adulteress. The argument in support of the challenge is that whether or not the husband has the right to prosecute the disloyal wife, the wife must have the right to prosecute the disloyal husband. Admittedly under the law, the aggrieved husband whose wife has been disloyal to him has no right under the law to prosecute his wife, inasmuch as by the very definition of the offence, only a man can commit it, not a woman. The philosophy underlying the scheme of these provisions appears to be that as between the husband and the wife social goodwill be promoted by permitting them to ‘make up’ or ‘break up’ the matrimonial tie rather than to drag each other to the Criminal Court. They can either condone the offence in a spirit of ‘forgive and forget’ and live together or separate by approaching a matrimonial Court and snapping the matrimonial tie by securing divorce. They are not enabled to send each other to jail. Perhaps it is as well that the children (if any) are saved from the trauma of one of their parents being jailed at the instance of the other parent. Whether one does or does not subscribe to the wisdom or philosophy of these provisions is of little consequence. For, the Court is not the arbiter of the wisdom or the philosophy of the law. It is the arbiter merely of the constitutionality of the law.
    5. Section 497, Penal Code, and S. 198(l) read with S. 198(2), Criminal P.C. go hand in hand and constitute a legislative packet to deal with the offence committed by an outsider to the matrimonial unit who invades the peace and privacy of the matrimonial unit and poisons the relationship between the two partners constituting the matrimonial unit. The community punishes the ‘outsider’ who breaks into the matrimonial home and occasions the violation of sanctity of the matrimonial tie by developing an illicit relationship with one of the spouses subject to the rider that the erring ‘man’ alone can be punished and not the erring woman. It does not arm the two spouses to hit each other with the weapon of criminal law. That is why neither the husband can prosecute the wife and send her to jail nor can the wife prosecute the husband and send him to jail. There is no discrimination based on sex. While the outsider who violates the sanctity of the matrimonial home is punished a rider has been added that if the outsider is a woman she is not punished. There is thus reverse discrimination in ‘favour’ of the woman rather than ‘against’ her. The law does not envisage the punishment of any of the spouses at the instance of each other. Thus there is no discrimination against the woman in so far as she is not permitted to prosecute her husband. A husband is not permitted because the wife is not treated an offender in the eye of law. The wife is not permitted as S. 198(l) read with S. 198(2) does not permit her to do so. In the ultimate analysis the law has meted out even handed justice to both of them in the matter of prosecuting each other or securing the incarceration of each other. Thus no discrimination has been practised in circumscribing the scope of S. 198(2) and fashioning it so that the right to prosecute the adulterer is restricted to the husband of the adulteress but has not been extended to the wife of the adulterer.”
  16. In view of the above, not only the complaint is not maintainable in law, but the husband could not be said to have committed any offence of adultery even if it is believed that he is in a live-in relationship with the applicant No.3, who is an unmarried lady. In view of the above, this application succeeds and is allowed. The further proceedings of the Criminal Case No. 301/15, pending in the Court of the learned Judicial Magistrate First Class, Mandvi, Kutch, arising from the private complaint lodged by the respondent No.2 herein for the offence punishable under Sections 497 read with 114 of the IPC are hereby ordered to be quashed.

 

 

(J.B.PARDIWALA, J.)

Mohandas

If you scr#w another woman’s husband & have a baby, here’s a nice way to BLAME MEN !! ;-)

Grand theme : Women these days need to blame men for their faults, for NO faults and of course for real faults where men tried and failed. Women do no wrong and in case I forgot, women are always the victims !!

In the author’s OWN words men are to be blamed for this mistake “……As I undid my ‘mistake’ all alone that weekend and started playing our favourite sport – football with my handsome toddler; I thought of the other two men and realized what ‘convenience love’ is – One left me alone with an infant for a career and the other only loves/needs me when he is alone….”

Once you have understood this theme, please read on, here’s a great article that appeared on TOI, “..Soul Curry..”

>>>>>>>>>>>>>>>> begin forward >>>>>>>>>>>>>>>

Yes, I got pregnant when my husband was out of town

TNN | Dec 13, 2015, 03.04 PM IST

Soul Curry invites you to share any soul-stirring experiences. If you have any such story to share, do send it to us at soulcurry and we will publish it for you!

Yes, I got pregnant when my husband was out of town (Representational picture, Courtesy: Getty Images)

On a chilly Saturday morning, as the second line showed a faint positive I was gripped with shock, fear and sadness. The greatest joy to womanhood just turned into a curse. Knowing that my husband has been away for more than a year, a missed period definitely indicated a second man.

The second man was already someone else’s man, a soldier who loved his wife intensely. He was the most charming man that I ever laid my eyes upon; days turned into weeks, weeks into months and here we were together (not actually) for almost 20 months. As destiny goes, we met, fell in love, love-making followed and a morning after pill couldn’t suppress the strong forces between us.

He was the first one I wanted to talk to about my pregnancy. But, could not reach out to him because I was bounded by time restrictions with his family constantly around. After having to handle a 2-year-old alone for a year, since my husband moved to another country, I could not face this alone (yet again). I had money, but dealt with the worst poverty – loneliness.

When I disclosed it to him , he asked me to be calm, assured he will always be around but here I was all alone fighting the guilt, the loneliness, the tears, fighting life. Though he stayed around on calls, agreed to help me financially, handled me with hell lot of patience because I drove him crazy; even asked me if he should come over (he stayed in a different state), he knew I would always say no and he escaped it beautifully. Calls would only happen during office hours; nights were cold and lonely. I was a fighter but even the strongest person needs a shoulder to lean on and that’s when the most beautiful man in my life rescued me – my son.

My little boy loved me unconditionally; his mom was both his mother and father. With guilt-filled eyes when I looked into his angelic innocent ones, I felt him say – Mom, I will never judge you, you are my Hero. With tears rolling down my eyes, I hugged my li’l man the tightest. Nature did join us by the umbilical cord but the bond we shared made us stronger!

As I undid my ‘mistake’ all alone that weekend and started playing our favourite sport – football with my handsome toddler; I thought of the other two men and realized what ‘convenience love’ is – One left me alone with an infant for a career and the other only loves/needs me when he is alone.

Right then the ball swung to me and I kicked it hard!

(By GraceAnn)

Soul Curry invites you to share any soul-stirring experiences. If you have any such story to share, do send it to us at soulcurry and we will publish it for you!

<<<<<<<<<<<<< end of forwarded message <<<<<<<<

Photo or witness NOT needed 2 prove adultery.Strict proof needed. Court 2b satisfied beyond reasonable doubt

Photo or witness NOT needed 2 prove adultery.Strict proof needed. Court 2b satisfied beyond reasonable doubt

The Hon Bombay HC considered a case where a wife files for divorce and allges that her husband is living in Adultery. In this classic case the burden of proof needed to establish the guilt is discussed in detail

The Hon Bombay HC states “…7. This however cannot and does not necessarily mean that the Court expects direct evidence by way of photographs or of eye-witnesses who have seen actual adultery or that it requires the employment of detectives peeping through key-holes and deposing about adulterous intercourse. The burden is no more than in a criminal case where the consequences to an accused are equally serious. It only means that there must be evidence, either oral or circumstantial in nature, from which the Court can be satisfied beyond reasonable doubt that the alleged offence is made out. ….”

However please exercise caution while using this case because the court ALSO says that Strict proof is needed

“…6. The principles regarding the nature and burden of proof in all such cases where adultery is alleged against one of the spouses by the other spouse, are well-settled. The parties are governed by the Hindu Marriage Act, 1955. The plaintiff claims relief under Section 13(1) on tbe ground of husband’s adultery. Under Section 23 the Court can grant relief only, it it is satisfied that any of the grounds , for granting relief exists and other conditions are fulfilled and not otherwise. A similar question arose in a different form in Sushila Mahendra v. Mahendra Manilal, 61 Bom LR 431 : (AIR 1960, Bom 117), before a Division Bench of this Court of which I was a member under Section 12(1)(d) of the Hindu Marriage Act, 1955. We reviewed the case law and held that the petitioner in such a case must prove the allegations beyond reasonable doubt, in other words that “satisfied” read with the words “but not otherwise” mean satisfied beyond reasonable doubt. …..”

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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BOMBAY HIGH COURT

DEVYANI KANTILAL SHROFF VS KANTILAL GAMANLAL SHROFF AND ANR. ON 21 AUGUST, 1962

EQUIVALENT CITATIONS: AIR 1963 BOM 98, (1963) 65 BOMLR 24, ILR 1962 BOM 706

BENCH: PATEL

JUDGMENT

1. This is an appeal by the wife against a decree of dismissal of her petition for divorce on the ground of adultery of her husband with respondent No. 2.

2. The petitioner was married to respondent No. 1 on the 15th of February 1947. After marriage, for a number of years they lived as husband and wife in Karim Building at Kanda Wadi on the and floor. The petitioner left respondent No. 1 in or about the end of 1958. At that time respondent No. 1 had two rooms in Karim Building. Out of these two rooms, he gave one room on leave and licence within a short time after the petitioner left, while the main residen tial room in which the petitioner and respondent No. 1 were residing he says he gave on leave and lincence in the month of April 1960. The pre sent petition for divorce on the ground of adultery was filed on 23rd February 1961.

3. She alleged that since about 1956 respondent No. 1 came in contact with respondent No. 2, who was living in Sikka Nagar with her husband and her two children. Gradually relations between respondents Nos. 1 and 2 became intimate. When ultimately the petitioner asked respondent No. 1 about his relation with respondent No. 2, he told her that she was his wife and beat her and drove her away. Even before that date, there used to be quarrels on this account. On the iast occasion, when she was beaten and driven out of the house, she went to the house of Savitiiben, the sister of respondent No. 1, and from there called her mother. In the house of Savitriben also respondent No. 1 beat her in the presence of Savitriben and her mother, and abused her mother as well, after which her mother took her to her own house and since then she is living with her parents. According to her, within a short time after she left the rooms in Karim Building, respondent No. 1 started living with respondent No. 2 who had about the month of August 1959 shifted to chawl No. 3 at Pipalwadi. Since then he was living with her in adultery. She therefore was entitled to a decree in divorce.

4. Both the respondents denied the allegations made by the petitioner. Respondent No. 1 contended that respondent No. 2 was a friend of the petitioner herself and whenever he visited respondent No. 2 at her husband’s place he went along with the petitioner and never alone. He alleged, on the other hand, that in or about 1956 and thereafter several friends of the petitioner used to visit his rooms in his absence and when he was told about it by the neighbours he remonstrated with the petitioner and that is why she left him. He admitted that he became, a paying guest of respondent No. 2 in or about August 1959 but was only taking his meals at her place. Both the respondents further admitted that it was only in the month of April 1960 that respondent No. r came to live with respondent No. 2 as a paying guest at Pipalwadi. Both of them alleged that during the time that respondent No. 1 was a paying guest, he was sleeping in the lobby throughout the period except in the months of July to October when because of the rains he was sleeping inside the room. Both of them further admitted that during the pendency of the suit whenever respondent No. 1 came from Bulsar he lived with respondent No. 2. Respondent No. 2 admitted that since about October 1958 her husband was not living with her but went to live with bis brother and that she was compelled to vacate that room in or about June 1959 after which she came to live at Pipalwadi. She asserted that at no time had she any adulterous intercourse with respondent No. 1 and that the allegations were false.

5. It is on these pleadings and on admissions of the parties that the issue as to whether or not it is established that respondent No. 1 lived in adultery with respondent No. 2 must be decided.

6. The principles regarding the nature and burden of proof in all such cases where adultery is alleged against one of the spouses by the other spouse, are well-settled. The parties are governed by the Hindu Marriage Act, 1955. The plaintiff claims relief under Section 13(1) on tbe ground of husband’s adultery. Under Section 23 the Court can grant relief only, it it is satisfied that any of the grounds , for granting relief exists and other conditions are fulfilled and not otherwise. A similar question arose in a different form in Sushila Mahendra v. Mahendra Manilal, 61 Bom LR 431 : (AIR 1960, Bom 117), before a Division Bench of this Court of which I was a member under Section 12(1)(d) of the Hindu Marriage Act, 1955. We reviewed the case law and held that the petitioner in such a case must prove the allegations beyond reasonable doubt, in other words that “satisfied” read with the words “but not otherwise” mean satisfied beyond reasonable doubt. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

In White v. White, , while considering similar provisions of the Indian Divorce Act where similar words in Sections 14 and 7 are used, the Supreme Court following the case of Preston-Jones v. Preston Jones, 1951 AC 391, held

“that the standard of proof in divorce cases would be such that if
the Judge is satisfied beyond reasonable doubt as to the commission
of a matrimonial offenee, he would be satisfied within the meaning of
Section 14 of the Act. The terms of Section 14 make it plain that
when the Court is to be satisfied on the evidence in respect of
matrimonial offences the guilt must be proved beyond reasonable doubt
and it is on that principle that the Courts in India would act.”

The reason of such a strict rule is not far to seek. A finding as to adultery or some such matrimonial offence has got very serious consequences inasmuch as it affects the status of a party, and it is on grounds of public policy that such A strict rule of proof is required in all such cases.

7. This however cannot and does not necessarily mean that the Court expects direct evi-dence by way of photographs or of eye-witnesses who have seen actual adultery or that it requires the employment of detectives peeping through key-holes and deposing about adulterous intercourse. The burden is no more than in a criminal case where the consequences to an accused are equally serious. It only means that there must be evidence, either oral or circumstantial in nature, from which tbe Court can be satisfied beyond reasonable doubt that the alleged offence is made out.

In Woolf v. Woolf, 1931 P 134, the Master of the Rolls said;

“The Petitioner is under no obligation to show adulterous inclination
generally on the part of the respondent. In my opinion, if evidence
is given in good faith which under all but the most unusual
circumstances is clear evidence of adultery, it is the duty of the
Court to act upon it, unless the King’s proctor can bring forward
cogent evidence to rebut the obvious presump tion. In Loveden v.
Loveden, (1810) 2 Hag Con 1(2), Sir William Scott said that it was
not neces sary to prove the direct fact of adultery, for ‘if it were
otherwise, there is not one case in a hundred in which that proof
would be attainable; it is very rarely indeed that the parties are
surprised in the direct fact of adultery. In every case almost the
fact is inferred from circumstances that lead to it by fair inference
as a, necessary conclusion; and unless this were the case, and un
less this were so held, no protection whatever could be given to
marital rights”.

The Court must have regard to the usual reluct ance of neighbours to get involved in giving evi dence in such cases and consider more the quality rather than quantity of evidence.

8. A case must be judged having due regard to the social conditions and the manner in which parties are accustomed to live. It is not necessary in every case, therefore, where cases of ordinary middle class come before the Court to require evidence that the respondents were sleeping in one room by themselves. If there is evidence enough to show that they had reasonable opportunity of having sexual intercourse in the conditions of life in which they live for days together then the Court may be justified in raising an inference of adultery.

(After discussing the evidence (paras 9-34), His Lordship concluded.)

The circumstances which I haye discussed above, when put together and
weighed,, must, lead only to one and one inference and that is that
respondents Nos. 1 and 2 were and are living in adultery. As stated
by me in the beginning of the judgment, the burden of proof is no
more than in a criminal case where the consequences are far worse.
Even in a criminal case it is not the quantity but the quality of the
evidence that is the governing factor, and the Court does not
hesitate, if it accepts the evidence, even if only oral to convict an
accused. The circumstances, which I have narrated above clearly
indicate the guilt of both respondents 1 and 2 and there could be no
reason to hold otherwise.

25. I accordingly answer the only issue, which arises in the case, in the affirmative, set aside the decree made by the learned trial Judge and direct that the marriage between the petitioner and the 1st respondent be and is hereby dissolved. Taking all the circumstances into account including the fact that in the trial Court the case went on for about 7 days, it seems to be proper that in the trial Court, Counsel’s fees should be certified at Rs. 350/.- in all. The costs in the trial Court which the respondent No. 1 will pay to the petitioner will, therefore, ‘be the taxed costs over and above the Counsel’s fee certified at Rs. 350/-. So far as the present appeal is concerned, I certify the total costs at Rs. 350/- Credit to be given for Rs. 150/- which respondent No. 1 had deposited in pursuance to my order dated 1st of February 1962.

26. The case is remanded to the learned Judge for determination of alimony to be paid by respondent No. 1 to the petitioner. Pending the decision by the trial Court, the order in res pect of interim alimony made earlier in this pro ceeding will continue to be operative. Office to draw up a decree in respect of interim alimony so as to make it executable.

27. Order accordingly.

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Madras HC: Divorce because of wife’s adultery will also disqualify her from maintenance aftr divorce !

Just imagine what would happen to the society IF Adulterous women can get alimony AFTER divorce…. Soon there will be millions who want to run away with lover-boy and charge the bills to the husband !!

Thankfully Madras HC decreed that Adultery disqualifies the woman from alimony even after divorce !!

The Law (sec 125 CrPc) states “…..”No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] from her husband under this section if she is living in adultery….”

the Law also states (sub clause 4 of sec 125 CrPC ) “….(4) No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] 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……”

The Honourable court concludes that ” The term “wife”, as employed in sub-Section 4 of Section 125 of the Code, shall undoubtedly include a divorced wife also. This (definition of wife) is manifest from the Explanation, which states that for the purposes of this Chapter, wife includes a woman, who has been divorced. It is noticeable that this Explanation is not for the purpose of sub-Section 1 of Section 125 of the Code alone and it is for the purpose of the whole Chapter IX, which includes sub-section 4 also…..”

The Honourable HC goes on the say “….Admittedly, as per sub-section 4 of Section 125 of the Code, if a woman lives in adultery, whose marriage is still subsisting, she is not entitled for maintenance from her husband. Suppose, a decree for divorce is granted on the ground of her living in adultery, can it be said that the said disqualification of which she was suffering from all along, during the subsistence of the marriage, will cease to exist, because of the decree for divorce?. The prudent answer to this question shall be an emphatic – “No”. The decree obtained by the husband for divorce on proving the adulterous life of the wife cannot give a license to her to continue to live in illicit relationship and to get her right to claim maintenance revived. Therefore, I conclude that a divorced wife, who lives in adultery, viz., living in illicit relationship with man other than her former husband is disqualified from claiming maintenance, under Section 125 of the Code..”

So thankfully… thankfully adulterous wife is NOT eligible for alimony from EX husband !!

Just imagine the Pandora’s box this would open up with every adulterous woman getting divorce, loafing around and seeking money from her EX husband

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 16.07.2015

CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU

CRL.RC.(MD)No.142 of 2012

M.Chinna Karuppasamy                    : Petitioner

Vs.

Kanimozhi                               : Respondent

PRAYER: Petition is filed under Section 397 r/w 401 of the Code of Criminal Procedure, to call for the records relating to the order dated 27.01.2012 made in Crl.R.C.No.22 of 2011 by the learned Principal District Judge, Ramanathapuram, set aside the same and confirm the order of the learned Chief Judicial Magistrate, Ramanathapuram, dated 21.09.2011 made in M.C.No.2 of 2010.

!For Petitioner         : Mr.G.R.Swaminathan For Mr.S.Parthasarathy

^For Respondent         : Mr.G.Prabhu Rajadurai Legal Aid Counsel

:ORDER

An interesting question, as to whether a woman, against whom a decree dissolving her marriage has been passed by the Civil Court on the ground of adultery, is entitled for maintenance under Section 125 of the Code of Criminal Procedure from her divorced husband, has arisen for consideration.

2. In this case, the respondent herein is the divorced wife of the petitioner. The marriage between them was celebrated on 01.02.1998, as per the Hindu Rites and Customs. Out of the said wedlock, they have got children also. Shortly, after sometime of the marriage, there arose misunderstanding between them and the marital life was not successful. The petitioner alleged that even prior to the marriage, the respondent was living a wayward life, which she continued even after her marriage. In short, according to the petitioner, the respondent was living in adultery. On the said ground, the petitioner filed H.M.O.P.No.571 of 2009, before the Family Court, Madurai, seeking divorce. The respondent remained ex-parte in the case. Consequently, the Civil Court granted decree for divorce dissolving the marriage, precisely on the ground that the respondent was living in adultery. During the pendency of the said matrimonial dispute before the Family Court, the respondent filed M.C.No.2 of 2010 before the learned Chief Judicial Magistrate, Ramanahtapuram, claiming maintenance under Section 125 of the Code of Criminal Procedure, [for brevity, “the Code”], at the rate of Rs.2,500/- per month.

3. Before the Chief Judicial Magistrate, the respondent herein alleged that the petitioner herein had developed illicit intimacy with his sister’s daughter, by name, Muthulakshmi and the petitioner wanted consent from the respondent for marrying the said Muthulakshmi, as his second wife. Since the respondent was consistently refusing to give consent, she was harassed and sent out of the matrimonial home, she alleged. She further alleged that the allegation that she was living in adultery, as contended in H.M.O.P.No.571 of 2009, was utter false. She further alleged that despite the decree for divorce granted by the Civil Court, as the divorced wife, she is entitled for maintenance. She further contended that the petitioner is in Government Service with a monthly salary of Rs.15,000/- per month and therefore, he is liable to pay a sum of Rs.2,500/- to her towards her maintenance.

4. During the trial of the said case before the learned Chief Judicial Magistrate, the respondent herein examined herself as PW-1 and as many as three documents were exhibited, i.e., the statement made by the petitioner herein before the police in connection with an enquiry held into a petition presented by the respondent, a copy of the statement made by the respondent before the police and a copy of H.M.O.P.No.571 of 2009. On the side of the petitioner herein, he examined himself as RW-1, wherein he had reiterated his stand that the respondent was living in adultery and that she was not, therefore, entitled for maintenance. One Mr.Muthuramalingam was examined as RW-2, who has spoken about the panchayat held to resolve the matrimonial dispute between the petitioner and the respondent, in which, according to him, Sreethana properties were taken back by the respondent and she expressed her desire to live separately. According to him, EX-P1 is the written undertaking given by the respondent; EX-P2 is the acknowledgement for having taken back the Sreethana properties; EX-P3 is the LIC Policy and EX-P4 is the marriage invitation of Mrs.Muthulakshmi. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

5. During the pendency of the trial of the maintenance case, the Civil Court granted decree for divorce in H.M.O.P.No.571 of 2009, on 12.03.2010. Having considered all the above evidences, the Trial Court, by order dated 21.09.2011 dismissed M.C.No.2 of 2010. Aggrieved over the same, the respondent filed a Revision before the learned Principal District and Sessions Judge, Ramanathapuram, in Cr.RC.No.22 of 2011. The learned Principal District and Sessions Judge, by order dated 27.01.2012, allowed the said revision, set aside the order of the Trial Court and directed the petitioner to pay a sum of Rs.1,000/- per month towards her maintenance. Challenging the said order, the petitioner is now before this Court with this Criminal Revision Case.

6. I have heard Mr.G.R.Swaminathan, the learned counsel appearing for the petitioner, Mr.G.Prabhu Rajadurai, the learned Legal Aid Counsel appearing for the respondent and I have also perused the records carefully.

7. In this Criminal Revision Case, the foremost contention of the learned counsel for the petitioner is that once if the Civil Court has granted decree for divorce on the ground that the wife was living in adultery, then, as per sub-Section 4 of Section 125 of the Code, she loses her right to claim maintenance from her former husband. The learned counsel would refer to sub-Section 4 of Section 125 of the Code to substantiate the said contention. According to him, the term “adultery”, as employed in sub- Section 4 of Section 125 of the Code, is applicable even to a divorced wife, whose marriage was dissolved on the ground of adultery. The learned counsel would further submit that so far as the ground of adultery is concerned, the disqualification arising out of the same is everlasting and the said disqualification will not cease to exist, after the woman has changed her course from the path of adultery. He would further submit that the decree, granted by the Civil Court, in the instant case, though is an ex-parte decree, binds the parties as well as the Criminal Court. Thus, according to the learned counsel, the respondent is not entitled for maintenance from the petitioner.

8. Mr.G.Prabhu Rajadurai, the learned counsel appearing for the respondent, would vehemently oppose this Criminal Revision Case. According to him, though an ex-parte decree of divorce granted by the Civil Court is binding on the parties, the same would not bind the Criminal Court, while considering the question of granting maintenance for the divorced wife. He would further submit that the term “adultery” is applicable only to a wife whose marriage is still in subsistence. In other words, according to the learned counsel, after the divorce, the wife is at liberty to choose her own way of sexual life, which is her liberty and therefore, such intimacy with a man would not fall within the term “adultery”, as referred to in the said provision. The learned counsel would, therefore, submit that sub-Section 4 of Section 125 of the Code is not applicable to a divorced woman, as the same is applicable only to a woman whose marriage is still subsisting.

9. I have considered the above submissions. As per sub-Section 1 of Section 125 of the Code, if any person having sufficient means neglects or refuses to maintain his wife unable to maintain herself, a Magistrate of the first class may upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife. Explanation ‘b’ appended to the above said provision states that the wife includes a woman, who has been divorced or has obtained divorce from her husband and has not re-married. It is too well settled that the Explanation appended to the main part of the enactment becomes a part and parcel of the said provision itself, [vide Bengal Immunity Co Ltd., Vs. State of Bihar, reported in AIR 1955 SC 661 : 1955 (2) SCR 603]. Therefore, a conjoint reading of sub-Section 4 of Section 125 of the Code with Explanation ‘b’ would make it manifestly clear that a divorced woman, who has not re-married, is entitled for maintenance from her former husband.

10. Now, let us have a quick look into sub-Section 4 of Section 125 of the Code, upon which much controversy has been raised by the learned counsel on either side, which reads as follows:-

“No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] 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”.

11. The term “wife”, as employed in sub-Section 4 of Section 125 of the Code, shall undoubtedly include a divorced wife also. This is manifest from the Explanation, which states that for the purposes of this Chapter, wife includes a woman, who has been divorced. It is noticeable that this Explanation is not for the purpose of sub-Section 1 of Section 125 of the Code alone and it is for the purpose of the whole Chapter IX, which includes sub-section 4 also. This provision speaks of three situations, i.e., living in adultery, or without any sufficient reason, if the wife refuses to live with her husband or if they are living separately by mutual consent. In the instant case, we need not go into the latter two situations, as we are concerned only with the first situation, i.e., living in adultery.

12. It is the contention of the learned counsel for the respondent that the term “adultery” is referable only to a wife whose marriage with her husband still subsists. The term “wife” for the purpose of the entire Chapter has been explained whereas, the term “adultery” has not been defined anywhere in the Code. However, it is defined in Section 497 of the Indian Penal Code. A question arose as early as in the year 1897 itself as to whether the definition of the term “adultery” as made in the Indian Penal Code could be imported to the Code of Criminal Procedure for the purpose of Section 488 of the Code of Criminal Procedure, 1898. The matter was referred to a Full Bench in Gantapalli Appalamma Vs. Gantapalli Yellayya, reported in 1897 ILR 20 Mad 470, wherein the Full Bench, in a unanimous decision, has held as follows:-

The term ‘adultery’ is used in that Section in the ordinary sense, that is, a married man having sexual connection with a woman who is not his wife. It appears to me that this construction is not affected by the last words of Section 4 of the Criminal Procedure Code, but is consistent with it.

13. As held by the Full Bench, the term “adultery” as employed in sub- Section 4 of Section 125 of the Code should receive a liberal interpretation to give its ordinary sense, i.e., a married woman having sexual connection with a man, who is not her husband. For the purpose of sub-Section 4 of Section 125 of the Code, the term “wife” cannot be confined only to the wife whose marriage is still subsisting, in view of the Explanation of the term “wife” for the purpose of the entire Chapter. Therefore, even after a decree for divorce is granted, if the wife wants to retain her right to claim maintenance from her former husband, she is expected to continue to maintain the same discipline, as she was expected to maintain during her marital ties, after the snapping of the marital ties also. In other words, during the subsistence of the marriage, the wife cannot live in adultery and in the event she lives in adultery, she loses her right to claim maintenance from her husband; similarly, even after the divorce, if she continues to maintain the same discipline, she will continue to retain the right to claim maintenance from her former husband. If she commits any breach of the said obligation and starts living in adultery, i.e., having sexual relationship with another man, she will lose her right to claim maintenance.

14. The very object of introducing the Chapter IX in the Code for maintenance of wife, children and parents is to rescue them from destitution by extending monetary assistance. Even after the divorce, the law takes care of her that she should not end up in destitution and that is the reason why, according to the Explanation, she is entitled for maintenance from her erstwhile husband, even after such divorce. Since the man carries the obligation to maintain his divorced wife, the woman also carries the obligation not to live in relationship with another man. If she commits breach and starts to live in relationship with another man, she will suffer disqualification from claiming maintenance, as dealt with in sub-Section 4 of Section 125 of the Code. If she wants and starts to live in relationship with any other man, she may be entitled for maintenance from him and not from the former husband.

15. Mr.G.Prabhu Rajadurai, the learned counsel has placed reliance on the Judgment of the Hon’ble Supreme Court in Rohtash Singh Vs. Ramendri [Smt] and others, reported in 2000 (3) SCC 180. That was a case, where the husband had obtained a decree of divorce under Section 13 of the Hindu Marriage Act, 1955, on the ground that the wife had deserted him. When the divorced wife claimed maintenance under Section 125 of the Code, the husband took the plea that as per sub-Section 4 of Section 125 of the Code, she is not entitled for maintenance. While negativing the said plea of the husband, the Hon’ble Supreme Court, in Paragraph Nos.10 and 11, has held as follows:-

10. Claim for maintenance under the first part of Section 125 CrPC is
based on the subsistence of marriage while claim for maintenance of a
divorced wife is based on the foundation provided by Explanation (b)
to sub- section (1) of Section 125 CrPC. If the divorced wife is
unable to maintain herself and if she has not remarried, she will be
entitled to maintenance allowance. The Calcutta High Court had an
occasion to consider an identical situation where the husband had
obtained divorce on the ground of desertion by the wife but she was
held entitled to maintenance allowance as a divorced wife under
Section 125 CrPC and the fact that she had deserted her husband and
on that basis a decree for divorce was passed against her was not
treated as a bar to her claim for maintenance as a divorced wife.
(See: Sukumar Dhibar v. Anjali Dasi.) The Allahabad High Court also,
in the instant case, has taken a similar view. We approve these
decisions as they represent the correct legal position.

11. Learned counsel for the petitioner then submitted that once a
decree for divorce was passed against the respondent and marital
relations between the petitioner and the respondent came to an end,
the mutual rights, duties and obligations should also come to an end.
He pleaded that in this situation, the obligation of the petitioner
to maintain a woman with whom all relations came to an end should
also be treated to have come to an end. This plea, as we have already
indicated above, cannot be accepted as a woman has two distinct
rights for maintenance. As a wife, she is entitled to maintenance
unless she suffers from any of the disabilities indicated in Section
125(4). In another capacity, namely, as a divorced woman, she is
again entitled to claim maintenance from the person of whom she was
once the wife. A woman after divorce becomes a destitute. If she
cannot maintain herself or remains unmarried, the man who was once
her husband continues to be under a statutory duty and obligation to
provide maintenance to her.

16. Placing much reliance on the said Judgment, the learned counsel contended that sub-Section 4 of Section 125 of the Code is not applicable to a divorced wife. But, the said Judgment cannot be generalized so as to make it applicable to the case of a divorced wife living in adultery also. So far as the desertion is concerned, sub-section 4 states that if the wife, without any sufficient reason, refuses to live with her husband, then, she is not entitled for maintenance. The Hon’ble Supreme Court took the view that after a decree of divorce is granted, it is not possible for the wife to live with her husband and therefore, according to the Hon’ble Supreme Court, sub- Section 4 of Section 125 of the Code is applicable only to a wife whose marriage is in subsistence. But, so far as adultery is concerned, in my considered view, the above Judgment cannot be made applicable, because even after the decree of divorce, the divorced wife carries the obligation not to live in relationship with any other man. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

17. In Smt.Vanamal Vs.Shri H.M.Ranganatha Bhatta, reported in 1995 [5] SCC 299, the Hon’ble Supreme Court was confronted with a similar situation. That was a case, where a decree for divorce was obtained by mutual consent under Section 13(b) of the Hindu Marriage Act, 1955. In the said case, when the wife claimed maintenance, the Hon’ble Supreme Court has held that sub- Section 4 of Section 125 of the Code is applicable only to a wife whose marriage is still in subsistence and the same is not applicable to a divorced wife by mutual consent. Here again, a divorced wife cannot live with her former husband and there is no question of her taking the consent of her former husband to live separately. That is the reason why, the Supreme Court has held that for a divorced wife sub-section (4) of Section 125 of the Code of Criminal Procedure is not applicable. Thus, this Judgment is also not applicable to living in adultery by her.

18. This can be analyzed from a different angle also. Admittedly, as per sub-section 4 of Section 125 of the Code, if a woman lives in adultery, whose marriage is still subsisting, she is not entitled for maintenance from her husband. Suppose, a decree for divorce is granted on the ground of her living in adultery, can it be said that the said disqualification of which she was suffering from all along, during the subsistence of the marriage, will cease to exist, because of the decree for divorce?. The prudent answer to this question shall be an emphatic – “No”. The decree obtained by the husband for divorce on proving the adulterous life of the wife cannot give a license to her to continue to live in illicit relationship and to get her right to claim maintenance revived. Therefore, I conclude that a divorced wife, who lives in adultery, viz., living in illicit relationship with man other than her former husband is disqualified from claiming maintenance, under Section 125 of the Code. Sub-section 5 of Section 125 of the Code is also applicable to such a wife, who is living in adultery, after an order under Section 125 of the Code has already been made. The above conclusion of mine is fortified by a Judgment of the Andhra Pradesh High Court in Pola Venkateswarlu Vs. Pola Lakshmi Devi Pola, decided on 07.10.2004, wherein the Andhra Pradesh High Court has held as follows:-

“As per Section 125(4) of the Code, the first respondent – wife is
not entitled to receive any allowance from the petitioner-husband
since divorce has been granted on the ground of her living in
adultery. Both the trial Court and the revisional Court, having
adverted to the decree granted in M.C.No.294 of 2004, on the file of
the Family court, Bangalore, committed an error in granting
maintenance to the first respondent – wife. If the error is allowed
to be committed, it amounts to miscarriage of justice”.

19. In the instant case, the decree granted by the Civil Court is an ex-parte decree on the ground that the wife was living in adultery and the said ex-parte decree though binding on the parties, is not binding on the Criminal Court, it is contended. In order to substantiate the said contention, the learned counsel has made reliance on the Judgment of this Court in K.Senthilanathan Vs. Jaichitra, [Crl.RC.No.771 of 2010, decided on 02.08.2010. A close reading of the said Judgment would go to show that the learned Judge has not laid down any law on the above legal issue. He has made only a passing remark and therefore, the same does not take the shape of a binding precedent.

20. Similarly, the learned counsel has relied on yet another Judgment of a learned Single Judge of this Court in Sundararajan Vs. Ashok Kumar, reported in (I) 1992 DMC 488, wherein in Paragraph No.15, it has been held as follows:-

“The above Judgment would show that the learned Subordinate Judge has
made a very formal matter out of it. The petitioner is not an eye
witness to the alleged adultery. The first respondent from her
childhood had been living with her sister and PW-2 is shown as
guardian even in the SSLC., Book, produced by her here. Naturally,
the wedding invitation Ex-P2 also produced by her here, is in his
name. The oral evidence of the petitioner in the divorce O.P. proved
nothing, so far as the adultery was concerned. EX.A1 in the divorce
O.P is the marriage invitation, EX-P2 here, A.2 is a notice issued by
the petitioner’s counsel to the respondent and A.3 is the postal
acknowledgement signed by the first respondent. It is on this
material, that the learned Subordinate Judge holds that the
allegation of adultery made in the petition is found true in the
light of the evidence of PW-1 and documents Exs.A1 to A3. In Ex.R.2,
there is no reference to the counter filed by the first respondent
and its contents. No issues have been framed. The evidence of the
petitioner is neither summarized nor discussed for being either
accepted or rejected. Nor are the contents of the documents referred
to. Neither of the Courts below had held that the first respondent
was guilty of adultery. Rightly, the Courts below declined to act
upon this exparte decree of divorce. They had instead, appreciated
the evidence adduced before them on this aspeect and the learned
Sessions Judge has given a positive finding, that there is no basis
for holding that the respondent is not guilty of adultery with PW-21
find no illegality or error in the learned Sessions Judge holding so.
The first respondent therefore, is entitled for maintenance as found
by the learned Sessions Judge”.

21. I have carefully gone through the said Judgment. But, I express my regret that I am unable to concur with the said view taken by the learned Single Judge. In my considered view, with due respect, the view expressed by the learned Judge, is per incurium, as it is in direct conflict with the statutory provisions contained in Section 41 of the Indian Evidence Act, 1872, which reads as follows:-

“41. Relevancy of certain judgments in probate, etc., jurisdiction.-A
final judgment, order or decree of a competent Court, in the exercise
of probate, matrimonial, admiralty or insolvency jurisdiction,which
confers upon or takes away from any person any legal character,or
which declares any person to be entitled to any such character, or to
be entitled to any specific thing, not as against any specified
person but absolutely, is relevant when the existence of any such
legal character, or the title of any such person to any such thing,
is relevant.

Such judgment, order or decree is conclusive proof that any legal
character, which it confers accrued at the time when such judgment,
order or decree came into operation;

that any legal character, to which it declares any such person to
been entitled, accrued to that person at the time when such judgment,
order, or decree declares it to have accrued to that person;

that any legal character which it takes away from any such person
ceased at the time from which such judgment, order or decree declared
that it had ceased or should cease;

and that anything to which it declares any person to be so entitled
was the property of that person at the time from which such judgment,
order or decree declares that it had been or should be his property”.

22. In view of Section 41 of the Indian Evidence Act, 1872, if once the decree for divorce is granted on the ground of adultery, such finding is relevant for deciding the issue of adultery in the present case. This Court cannot sit in an appeal over the said decree for divorce granted by the Civil court, when the same has not been challenged by the aggrieved party. There can be no difference between a decree on contest and an ex-parte decree, since, like a decree on contest, an ex-parte decree is also a decree passed on proof of the claim made by means of sufficient evidence. It is well known that though simply because the defendant has remained ex-parte, the Court shall not grant decree, unless the claim made in the plaint is proved, by means of evidence either oral or documentary or both. In the case on hand, therefore, there can be no doubt that the decree for divorce granted by the Civil court in favour of the petitioner is sufficient proof that the respondent was living in adultery. When once such a decree is in force, it is not possible for this Court to take a different view contrary to the decree granted by the Civil court. Therefore, I hold that besides, oral evidence let in, in this case, the decree granted by the Family Court clearly goes to prove that the respondent is living in adultery and thus, she suffers from the disqualification to claim maintenance from the petitioner. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

23. In view of the foregoing discussion, I hold that the learned Principal Sessions Judge was not right in reversing the order of the Trial Court and therefore, the order of the learned Principal Sessions Judge impugned in this Criminal Revision Case is liable to be set aside.

24. In the result, this Criminal Revision Case is allowed, the order, dated 27.01.2012, made in Crl.R.C.No.22 of 2011, passed by the learned Principal District Judge, Ramanathapuram, is set aside and that of the order of the learned Chief Judicial Magistrate, Ramanathapuram, dated 21.09.2011, made in M.C.No.2 of 2010, is restored.

To

1.The Principal District Judge, Ramanathapuram.

2.The Chief Judicial Magistrate, Ramanathapuram.

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No maintenance 2 adulterous wife. If adultry continues AFTER divorce, maintenace denied AFTER divorce as well !! Madras HC

No maintenance 2 adulterous wife. If adultry continues AFTER divorce, maintenace denied AFTER divorce as well !! Madras HC

  • Husband gets divorce claiming that wife is living an adulterous life. He submits police inquiry details, panchayat conducted etc etc
  • However wife (wife’s lawyer) argues that since divorce is over, wife can decide what she does (sexually) and so she should get maintenance (after divorce), i.e she should get maintenance EVEN if she lived in adultery (quoting wife’s Lawyer Mr. Prabhu Rajadurai  “…. He would further submit that the term “adultery” is applicable only to a wife whose marriage is still in subsistence. In other words, according to the learned counsel, after the divorce, the wife is at liberty to choose her own way of sexual life, which is her liberty and therefore, such intimacy with a man would not fall within the term “adultery”, as referred to in the said provision..”
  • HON Madras HC categorically denies maintenance to adulterous wife !! and we quote the Hon HC’s main thrust below :

“….Admittedly, as per sub-section 4 of Section 125 of the Code, if a woman lives in adultery, whose marriage is still subsisting, she is not entitled for maintenance from her husband. Suppose, a decree for divorce is granted on the ground of her living in adultery, can it be said that the said disqualification of which she was suffering from all along, during the subsistence of the marriage, will cease to exist, because of the decree for divorce?. The prudent answer to this question shall be an emphatic – “No”. The decree obtained by the husband for divorce on proving the adulterous life of the wife cannot give a license to her to continue to live in illicit relationship and to get her right to claim maintenance revived. Therefore, I conclude that a divorced wife, who lives in adultery, viz., living in illicit relationship with man other than her former husband is disqualified from claiming maintenance, under Section 125 of the Code. Sub-section 5 of Section 125 of the Code is also applicable to such a wife, who is living in adultery, after an order under Section 125 of the Code has already been made. ….”

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT               

DATED: 16.07.2015

CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU

CRL.RC.(MD)No.142 of 2012

M.Chinna Karuppasamy                    : Petitioner

Vs.

Kanimozhi                               : Respondent

PRAYER: Petition is filed under Section 397 r/w 401 of the Code of Criminal
Procedure, to call for the records relating to the order dated 27.01.2012
made in Crl.R.C.No.22 of 2011 by the learned Principal District Judge,
Ramanathapuram, set aside the same and confirm the order of the learned Chief
Judicial Magistrate, Ramanathapuram, dated 21.09.2011 made in M.C.No.2 of  2010.

For Petitioner         : Mr.G.R.Swaminathan, For Mr.S.Parthasarathy

For Respondent         : Mr.G.Prabhu Rajadurai, Legal Aid Counsel

:ORDER

An interesting question, as to whether a woman, against whom a decree dissolving her marriage has been passed by the Civil Court on the ground of adultery, is entitled for maintenance under Section 125 of the Code of Criminal Procedure from her divorced husband, has arisen for consideration.

2. In this case, the respondent herein is the divorced wife of the petitioner. The marriage between them was celebrated on 01.02.1998, as per the Hindu Rites and Customs. Out of the said wedlock, they have got children also. Shortly, after sometime of the marriage, there arose misunderstanding between them and the marital life was not successful. The petitioner alleged that even prior to the marriage, the respondent was living a wayward life, which she continued even after her marriage. In short, according to the petitioner, the respondent was living in adultery. On the said ground, the petitioner filed H.M.O.P.No.571 of 2009, before the Family Court, Madurai, seeking divorce. The respondent remained ex-parte in the case. Consequently, the Civil Court granted decree for divorce dissolving the marriage, precisely on the ground that the respondent was living in adultery. During the pendency of the said matrimonial dispute before the Family Court, the respondent filed M.C.No.2 of 2010 before the learned Chief Judicial Magistrate, Ramanahtapuram, claiming maintenance under Section 125 of the Code of Criminal Procedure, [for brevity, “the Code”], at the rate of Rs.2,500/- per month.

3. Before the Chief Judicial Magistrate, the respondent herein alleged that the petitioner herein had developed illicit intimacy with his sister’s daughter, by name, Muthulakshmi and the petitioner wanted consent from the respondent for marrying the said Muthulakshmi, as his second wife. Since the respondent was consistently refusing to give consent, she was harassed and sent out of the matrimonial home, she alleged. She further alleged that the allegation that she was living in adultery, as contended in H.M.O.P.No.571 of 2009, was utter false. She further alleged that despite the decree for divorce granted by the Civil Court, as the divorced wife, she is entitled for maintenance. She further contended that the petitioner is in Government Service with a monthly salary of Rs.15,000/- per month and therefore, he is liable to pay a sum of Rs.2,500/- to her towards her maintenance.

4. During the trial of the said case before the learned Chief Judicial Magistrate, the respondent herein examined herself as PW-1 and as many as three documents were exhibited, i.e., the statement made by the petitioner herein before the police in connection with an enquiry held into a petition presented by the respondent, a copy of the statement made by the respondent before the police and a copy of H.M.O.P.No.571 of 2009. On the side of the petitioner herein, he examined himself as RW-1, wherein he had reiterated his stand that the respondent was living in adultery and that she was not, therefore, entitled for maintenance. One Mr.Muthuramalingam was examined as RW-2, who has spoken about the panchayat held to resolve the matrimonial dispute between the petitioner and the respondent, in which, according to him, Sreethana properties were taken back by the respondent and she expressed her desire to live separately. According to him, EX-P1 is the written undertaking given by the respondent; EX-P2 is the acknowledgement for having taken back the Sreethana properties; EX-P3 is the LIC Policy and EX-P4 is the marriage invitation of Mrs.Muthulakshmi.

5. During the pendency of the trial of the maintenance case, the Civil Court granted decree for divorce in H.M.O.P.No.571 of 2009, on 12.03.2010. Having considered all the above evidences, the Trial Court, by order dated 21.09.2011 dismissed M.C.No.2 of 2010. Aggrieved over the same, the respondent filed a Revision before the learned Principal District and Sessions Judge, Ramanathapuram, in Cr.RC.No.22 of 2011. The learned Principal District and Sessions Judge, by order dated 27.01.2012, allowed the said revision, set aside the order of the Trial Court and directed the petitioner to pay a sum of Rs.1,000/- per month towards her maintenance. Challenging the said order, the petitioner is now before this Court with this Criminal Revision Case.

6. I have heard Mr.G.R.Swaminathan, the learned counsel appearing for the petitioner, Mr.G.Prabhu Rajadurai, the learned Legal Aid Counsel appearing for the respondent and I have also perused the records carefully.

7. In this Criminal Revision Case, the foremost contention of the learned counsel for the petitioner is that once if the Civil Court has granted decree for divorce on the ground that the wife was living in adultery, then, as per sub-Section 4 of Section 125 of the Code, she loses her right to claim maintenance from her former husband. The learned counsel would refer to sub-Section 4 of Section 125 of the Code to substantiate the said contention. According to him, the term “adultery”, as employed in sub- Section 4 of Section 125 of the Code, is applicable even to a divorced wife, whose marriage was dissolved on the ground of adultery. The learned counsel would further submit that so far as the ground of adultery is concerned, the disqualification arising out of the same is everlasting and the said disqualification will not cease to exist, after the woman has changed her course from the path of adultery. He would further submit that the decree, granted by the Civil Court, in the instant case, though is an ex-parte decree, binds the parties as well as the Criminal Court. Thus, according to the learned counsel, the respondent is not entitled for maintenance from the petitioner.

8. Mr.G.Prabhu Rajadurai, the learned counsel appearing for the respondent, would vehemently oppose this Criminal Revision Case. According to him, though an ex-parte decree of divorce granted by the Civil Court is binding on the parties, the same would not bind the Criminal Court, while considering the question of granting maintenance for the divorced wife. He would further submit that the term “adultery” is applicable only to a wife whose marriage is still in subsistence. In other words, according to the learned counsel, after the divorce, the wife is at liberty to choose her own way of sexual life, which is her liberty and therefore, such intimacy with a man would not fall within the term “adultery”, as referred to in the said provision. The learned counsel would, therefore, submit that sub-Section 4 of Section 125 of the Code is not applicable to a divorced woman, as the same is applicable only to a woman whose marriage is still subsisting.

9. I have considered the above submissions. As per sub-Section 1 of Section 125 of the Code, if any person having sufficient means neglects or refuses to maintain his wife unable to maintain herself, a Magistrate of the first class may upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife. Explanation ‘b’ appended to the above said provision states that the wife includes a woman, who has been divorced or has obtained divorce from her husband and has not re-married. It is too well settled that the Explanation appended to the main part of the enactment becomes a part and parcel of the said provision itself, [vide Bengal Immunity Co Ltd., Vs. State of Bihar, reported in AIR 1955 SC 661 : 1955 (2) SCR 603]. Therefore, a conjoint reading of sub-Section 4 of Section 125 of the Code with Explanation ‘b’ would make it manifestly clear that a divorced woman, who has not re-married, is entitled for maintenance from her former husband.

10. Now, let us have a quick look into sub-Section 4 of Section 125 of the Code, upon which much controversy has been raised by the learned counsel on either side, which reads as follows:-

   “No wife shall be entitled to receive an [allowance for the
   maintenance or the interim maintenance and expenses of proceeding, as
   the case may be,] 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”.

11. The term “wife”, as employed in sub-Section 4 of Section 125 of the Code, shall undoubtedly include a divorced wife also. This is manifest from the Explanation, which states that for the purposes of this Chapter, wife includes a woman, who has been divorced. It is noticeable that this Explanation is not for the purpose of sub-Section 1 of Section 125 of the Code alone and it is for the purpose of the whole Chapter IX, which includes sub-section 4 also. This provision speaks of three situations, i.e., living in adultery, or without any sufficient reason, if the wife refuses to live with her husband or if they are living separately by mutual consent. In the instant case, we need not go into the latter two situations, as we are concerned only with the first situation, i.e., living in adultery.

12. It is the contention of the learned counsel for the respondent that the term “adultery” is referable only to a wife whose marriage with her husband still subsists. The term “wife” for the purpose of the entire Chapter has been explained whereas, the term “adultery” has not been defined anywhere in the Code. However, it is defined in Section 497 of the Indian Penal Code. A question arose as early as in the year 1897 itself as to whether the definition of the term “adultery” as made in the Indian Penal Code could be imported to the Code of Criminal Procedure for the purpose of Section 488 of the Code of Criminal Procedure, 1898. The matter was referred to a Full Bench in Gantapalli Appalamma Vs. Gantapalli Yellayya, reported in 1897 ILR 20 Mad 470, wherein the Full Bench, in a unanimous decision, has held as follows:-

The term ‘adultery’ is used in that Section in the ordinary sense, that is, a married man having sexual connection with a woman who is not his wife. It appears to me that this construction is not affected by the last words of Section 4 of the Criminal Procedure Code, but is consistent with it.

13. As held by the Full Bench, the term “adultery” as employed in sub- Section 4 of Section 125 of the Code should receive a liberal interpretation to give its ordinary sense, i.e., a married woman having sexual connection with a man, who is not her husband. For the purpose of sub-Section 4 of Section 125 of the Code, the term “wife” cannot be confined only to the wife whose marriage is still subsisting, in view of the Explanation of the term “wife” for the purpose of the entire Chapter. Therefore, even after a decree for divorce is granted, if the wife wants to retain her right to claim maintenance from her former husband, she is expected to continue to maintain the same discipline, as she was expected to maintain during her marital ties, after the snapping of the marital ties also. In other words, during the subsistence of the marriage, the wife cannot live in adultery and in the event she lives in adultery, she loses her right to claim maintenance from her husband; similarly, even after the divorce, if she continues to maintain the same discipline, she will continue to retain the right to claim maintenance from her former husband. If she commits any breach of the said obligation and starts living in adultery, i.e., having sexual relationship with another man, she will lose her right to claim maintenance.

14. The very object of introducing the Chapter IX in the Code for maintenance of wife, children and parents is to rescue them from destitution by extending monetary assistance. Even after the divorce, the law takes care of her that she should not end up in destitution and that is the reason why, according to the Explanation, she is entitled for maintenance from her erstwhile husband, even after such divorce. Since the man carries the obligation to maintain his divorced wife, the woman also carries the obligation not to live in relationship with another man. If she commits breach and starts to live in relationship with another man, she will suffer disqualification from claiming maintenance, as dealt with in sub-Section 4 of Section 125 of the Code. If she wants and starts to live in relationship with any other man, she may be entitled for maintenance from him and not from the former husband.

15. Mr.G.Prabhu Rajadurai, the learned counsel has placed reliance on the Judgment of the Hon’ble Supreme Court in Rohtash Singh Vs. Ramendri [Smt] and others, reported in 2000 (3) SCC 180. That was a case, where the husband had obtained a decree of divorce under Section 13 of the Hindu Marriage Act, 1955, on the ground that the wife had deserted him. When the divorced wife claimed maintenance under Section 125 of the Code, the husband took the plea that as per sub-Section 4 of Section 125 of the Code, she is not entitled for maintenance. While negativing the said plea of the husband, the Hon’ble Supreme Court, in Paragraph Nos.10 and 11, has held as follows:-

10. Claim for maintenance under the first part of Section 125 CrPC is
based on the subsistence of marriage while claim for maintenance of a
divorced wife is based on the foundation provided by Explanation (b)
to sub- section (1) of Section 125 CrPC. If the divorced wife is
unable to maintain herself and if she has not remarried, she will be
entitled to maintenance allowance. The Calcutta High Court had an
occasion to consider an identical situation where the husband had
obtained divorce on the ground of desertion by the wife but she was
held entitled to maintenance allowance as a divorced wife under
Section 125 CrPC and the fact that she had deserted her husband and
on that basis a decree for divorce was passed against her was not
treated as a bar to her claim for maintenance as a divorced wife.
(See: Sukumar Dhibar v. Anjali Dasi.) The Allahabad High Court also,
in the instant case, has taken a similar view. We approve these
decisions as they represent the correct legal position.

11. Learned counsel for the petitioner then submitted that once a
decree for divorce was passed against the respondent and marital
relations between the petitioner and the respondent came to an end,
the mutual rights, duties and obligations should also come to an end.
He pleaded that in this situation, the obligation of the petitioner
to maintain a woman with whom all relations came to an end should
also be treated to have come to an end. This plea, as we have already
indicated above, cannot be accepted as a woman has two distinct
rights for maintenance. As a wife, she is entitled to maintenance
unless she suffers from any of the disabilities indicated in Section
125(4). In another capacity, namely, as a divorced woman, she is
again entitled to claim maintenance from the person of whom she was
once the wife. A woman after divorce becomes a destitute. If she
cannot maintain herself or remains unmarried, the man who was once
her husband continues to be under a statutory duty and obligation to
provide maintenance to her.

16. Placing much reliance on the said Judgment, the learned counsel contended that sub-Section 4 of Section 125 of the Code is not applicable to a divorced wife. But, the said Judgment cannot be generalized so as to make it applicable to the case of a divorced wife living in adultery also. So far as the desertion is concerned, sub-section 4 states that if the wife, without any sufficient reason, refuses to live with her husband, then, she is not entitled for maintenance. The Hon’ble Supreme Court took the view that after a decree of divorce is granted, it is not possible for the wife to live with her husband and therefore, according to the Hon’ble Supreme Court, sub- Section 4 of Section 125 of the Code is applicable only to a wife whose marriage is in subsistence. But, so far as adultery is concerned, in my considered view, the above Judgment cannot be made applicable, because even after the decree of divorce, the divorced wife carries the obligation not to live in relationship with any other man.

17. In Smt.Vanamal Vs.Shri H.M.Ranganatha Bhatta, reported in 1995 [5] SCC 299, the Hon’ble Supreme Court was confronted with a similar situation. That was a case, where a decree for divorce was obtained by mutual consent under Section 13(b) of the Hindu Marriage Act, 1955. In the said case, when the wife claimed maintenance, the Hon’ble Supreme Court has held that sub- Section 4 of Section 125 of the Code is applicable only to a wife whose marriage is still in subsistence and the same is not applicable to a divorced wife by mutual consent. Here again, a divorced wife cannot live with her former husband and there is no question of her taking the consent of her former husband to live separately. That is the reason why, the Supreme Court has held that for a divorced wife sub-section (4) of Section 125 of the Code of Criminal Procedure is not applicable. Thus, this Judgment is also not applicable to living in adultery by her.

18. This can be analyzed from a different angle also. Admittedly, as per sub-section 4 of Section 125 of the Code, if a woman lives in adultery, whose marriage is still subsisting, she is not entitled for maintenance from her husband. Suppose, a decree for divorce is granted on the ground of her living in adultery, can it be said that the said disqualification of which she was suffering from all along, during the subsistence of the marriage, will cease to exist, because of the decree for divorce?. The prudent answer to this question shall be an emphatic – “No”. The decree obtained by the husband for divorce on proving the adulterous life of the wife cannot give a license to her to continue to live in illicit relationship and to get her right to claim maintenance revived. Therefore, I conclude that a divorced wife, who lives in adultery, viz., living in illicit relationship with man other than her former husband is disqualified from claiming maintenance, under Section 125 of the Code. Sub-section 5 of Section 125 of the Code is also applicable to such a wife, who is living in adultery, after an order under Section 125 of the Code has already been made. The above conclusion of mine is fortified by a Judgment of the Andhra Pradesh High Court in Pola Venkateswarlu Vs. Pola Lakshmi Devi Pola, decided on 07.10.2004, wherein the Andhra Pradesh High Court has held as follows:-

“As per Section 125(4) of the Code, the first respondent – wife is
not entitled to receive any allowance from the petitioner-husband
since divorce has been granted on the ground of her living in
adultery. Both the trial Court and the revisional Court, having
adverted to the decree granted in M.C.No.294 of 2004, on the file of
the Family court, Bangalore, committed an error in granting
maintenance to the first respondent – wife. If the error is allowed
to be committed, it amounts to miscarriage of justice”.

19. In the instant case, the decree granted by the Civil Court is an ex-parte decree on the ground that the wife was living in adultery and the said ex-parte decree though binding on the parties, is not binding on the Criminal Court, it is contended. In order to substantiate the said contention, the learned counsel has made reliance on the Judgment of this Court in K.Senthilanathan Vs. Jaichitra, [Crl.RC.No.771 of 2010, decided on 02.08.2010. A close reading of the said Judgment would go to show that the learned Judge has not laid down any law on the above legal issue. He has made only a passing remark and therefore, the same does not take the shape of a binding precedent.

20. Similarly, the learned counsel has relied on yet another Judgment of a learned Single Judge of this Court in Sundararajan Vs. Ashok Kumar, reported in (I) 1992 DMC 488, wherein in Paragraph No.15, it has been held as follows:-

“The above Judgment would show that the learned Subordinate Judge has
made a very formal matter out of it. The petitioner is not an eye
witness to the alleged adultery. The first respondent from her
childhood had been living with her sister and PW-2 is shown as
guardian even in the SSLC., Book, produced by her here. Naturally,
the wedding invitation Ex-P2 also produced by her here, is in his
name. The oral evidence of the petitioner in the divorce O.P. proved
nothing, so far as the adultery was concerned. EX.A1 in the divorce
O.P is the marriage invitation, EX-P2 here, A.2 is a notice issued by
the petitioner’s counsel to the respondent and A.3 is the postal
acknowledgement signed by the first respondent. It is on this
material, that the learned Subordinate Judge holds that the
allegation of adultery made in the petition is found true in the
light of the evidence of PW-1 and documents Exs.A1 to A3. In Ex.R.2,
there is no reference to the counter filed by the first respondent
and its contents. No issues have been framed. The evidence of the
petitioner is neither summarized nor discussed for being either
accepted or rejected. Nor are the contents of the documents referred
to. Neither of the Courts below had held that the first respondent
was guilty of adultery. Rightly, the Courts below declined to act
upon this exparte decree of divorce. They had instead, appreciated
the evidence adduced before them on this aspeect and the learned
Sessions Judge has given a positive finding, that there is no basis
for holding that the respondent is not guilty of adultery with PW-21
find no illegality or error in the learned Sessions Judge holding so.
The first respondent therefore, is entitled for maintenance as found
by the learned Sessions Judge”.

21. I have carefully gone through the said Judgment. But, I express my regret that I am unable to concur with the said view taken by the learned Single Judge. In my considered view, with due respect, the view expressed by the learned Judge, is per incurium, as it is in direct conflict with the statutory provisions contained in Section 41 of the Indian Evidence Act, 1872, which reads as follows:-

“41. Relevancy of certain judgments in probate, etc., jurisdiction.-A
final judgment, order or decree of a competent Court, in the exercise
of probate, matrimonial, admiralty or insolvency jurisdiction,which
confers upon or takes away from any person any legal character,or
which declares any person to be entitled to any such character, or to
be entitled to any specific thing, not as against any specified
person but absolutely, is relevant when the existence of any such
legal character, or the title of any such person to any such thing,
is relevant.

Such judgment, order or decree is conclusive proof that any legal
character, which it confers accrued at the time when such judgment,
order or decree came into operation; that any legal character, to
which it declares any such person to been entitled, accrued to that
person at the time when such judgment, order, or decree declares it
to have accrued to that person; that any legal character which it
takes away from any such person ceased at the time from which such
judgment, order or decree declared that it had ceased or should
cease; and that anything to which it declares any person to be so
entitled was the property of that person at the time from which such
judgment, order or decree declares that it had been or should be his
property”.

22. In view of Section 41 of the Indian Evidence Act, 1872, if once the decree for divorce is granted on the ground of adultery, such finding is relevant for deciding the issue of adultery in the present case. This Court cannot sit in an appeal over the said decree for divorce granted by the Civil court, when the same has not been challenged by the aggrieved party. There can be no difference between a decree on contest and an ex-parte decree, since, like a decree on contest, an ex-parte decree is also a decree passed on proof of the claim made by means of sufficient evidence. It is well known that though simply because the defendant has remained ex-parte, the Court shall not grant decree, unless the claim made in the plaint is proved, by means of evidence either oral or documentary or both. In the case on hand, therefore, there can be no doubt that the decree for divorce granted by the Civil court in favour of the petitioner is sufficient proof that the respondent was living in adultery. When once such a decree is in force, it is not possible for this Court to take a different view contrary to the decree granted by the Civil court. Therefore, I hold that besides, oral evidence let in, in this case, the decree granted by the Family Court clearly goes to prove that the respondent is living in adultery and thus, she suffers from the disqualification to claim maintenance from the petitioner.

23. In view of the foregoing discussion, I hold that the learned Principal Sessions Judge was not right in reversing the order of the Trial Court and therefore, the order of the learned Principal Sessions Judge impugned in this Criminal Revision Case is liable to be set aside.

24. In the result, this Criminal Revision Case is allowed, the order, dated 27.01.2012, made in Crl.R.C.No.22 of 2011, passed by the learned Principal District Judge, Ramanathapuram, is set aside and that of the order of the learned Chief Judicial Magistrate, Ramanathapuram, dated 21.09.2011, made in M.C.No.2 of 2010, is restored.

To

1.The Principal District Judge, Ramanathapuram.

2.The Chief Judicial Magistrate, Ramanathapuram.