Tag Archives: adultry

Dubai police arrest Indian wife & PAKISTANI lover boy for sex OUTSIDE marriage !!


an Indian NRI calls Dubai police after he finds out that his wife is cheating with a PAKISTANI !! and the police arrest the wife !! My respect and salute to the laws of Dubai, and to the Dubai police !

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In India, u/s 497, the wife canNOT be charged with Adultery, !!!
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News from The National news paper / website

Indian man called Dubai police on cheating wife after uncovering affair on WhatsApp, court told

Salam Al Amir

November 7, 2014 Updated: November 7, 2014 03:44 PM

DUBAI

A man who accidentally saw a text on his wife’s mobile phone sent to a strange man followed her and found that she was cheating on him.

The Indian, BH, 45, then called police, who arrested the woman and her lover in his apartment in Sports City.

Prosecutors charged the Indian wife, AS, 35, and her Pakistani lover, MA, 43, a general manager, with having consensual sex outside wedlock.

The woman said that she met MA while visiting a Nakheel office and the two spoke about the economy and trading.

“He asked for my number and I gave it to him — I really liked his character and then we became more intimate and we started to meet,” said AS.

At Dubai Court of Misdemeanours she confessed and asked for her husband’s forgiveness. “This is not related to the case but a personal matter between you and your husband,” the presiding judge told her.

However, in court the Pakistani lover denied the charge after allegedly confessing to being involved with the woman for nearly six months.

“On the day of the arrest she knew I was at the apartment and said she would come to have dinner with me,” said MA.

“I said no because I was exhausted as I had just come from travel but she came and we ordered dinner. When the door bell rang, I opened up to pick up the dinner order and there were police out there. “It was then I knew that her husband had lodged a complaint.”

He added that she had visited his flat three times before their arrest.

Records show that in August the husband saw a text message in his wife’s WhatsApp messenger from a man he did not know.

“I knew she had an affair after I checked the messages and I found many messages between her and this man, some of which included intimate words and her desire to see him,” said the husband, who is a marketing manager.

“One of the messages said that they will meet in a flat in Sports City so I followed her and called police, who came and arrested both.”

A verdict is due on November 24.

source
http://www.thenational.ae/uae/courts/indian-man-called-dubai-police-on-cheating-wife-after-uncovering-affair-on-whatsapp-court-told

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

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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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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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Husband’s Illicit relations NOT amount 2 cruelty 498a NOT attractd, Family acquitted even after wife’s suicide. Supreme court!!

In this classic case the Hon supreme court describes what is abetment of suicide and what is the connection the prosecution has to establish to convict a person of cruelty under sec 498a , cruelty without a demand of dowry

Excerpts from the Honourable SC’s Judgement:

“…In the present case, in fact, there is no demand of dowry. If the evidence is appropriately appreciated, the deceased was pained and disturbed as the husband was having an illicit affair with the appellant no.4. Whether such a situation would amount to cruelty under the first limb of Section 498A IPC is to be seen….”

“…True it is, there is some evidence about the illicit relationship and even if the same is proven, we are of the considered opinion that cruelty, as envisaged under the first limb of Section 498A IPC would not get attracted. It would be difficult to hold that the mental cruelty was of such a degree that it would drive the wife to commit suicide. ….”

“…In the instant case, the accused may have been involved in an illicit relationship with the appellant no.4, but in the absence of some other acceptable evidence on record that can establish such high degree of mental cruelty, the Explanation to Section 498A which includes cruelty to drive a woman to commit suicide, would not be attracted…..”

“….The evidence brought on record against them with regard to cruelty is absolutely sketchy and not convincing. It has been alleged that the mother-in-law used to rob her money which she earned as wages. The said fact has really not been established….”

“...In view of the aforesaid analysis, the appeal is allowed, the conviction and sentence of all the appellants are set aside. As they are on bail, they be discharged of their bail bonds…..

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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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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 262 OF 2009

Ghusabhai Raisangbhai Chorasiya & Ors. … Appellants

Versus

State of Gujarat… Respondent

J U D G M E N T

Dipak Misra, J.

The present appeal, by special leave, is directed against the judgment of conviction and order of sentence passed by the High Court of Gujarat at Ahmedabad in Criminal Appeal No. 444/2005 whereby the Division Bench has affirmed the conviction recorded by the learned Additional Sessions Judge, Jamnagar, who had found the appellants guilty of the offences punishable under Section 498A, 306, 201 and 114 of the Indian Penal Code, 1860 (‘IPC’ for short) and sentenced Ghusabhai Raisinghbhai Chorasia, appellant no.1 to suffer five years imprisonment, Rakesh Ghusabhai Chorasia, appellant no.2 to suffer rigorous imprisonment for seven years and to pay a fine of Rs.500/-with a default clause and other accused persons, namely, Bakuben W/o Ghusabhai Chorasia and Jasuben @ Gaduben Rakeshbhai, appellant nos. 3 and 4 herein to suffer rigorous imprisonment for three years and to pay fine of Rs.250/- with a default clause under Section 306 IPC. That apart, separate sentences were imposed under Section 498A and 201 with the stipulation that all the sentences would run concurrently. Be it noted, the appellants were tried along with two other accused persons, namely, Sangitaben w/o. Vijaybhai and Vijay Ghusabhai Chorasia who were acquitted by the learned trial Judge. It is also apt to note here that the State had also preferred two criminal appeals, one for enhancement of sentence and the other challenging the acquittal of the other two accused persons and both the appeals were dismissed along with the appeal filed by the appellants in a common judgment.

2. The prosecution case, bereft of unnecessary details, is that the marriage between the deceased Biniben and Rakesh was solemnized approximately eight years before the date of occurrence, i.e. 4.3.2004. As put forth by the prosecution, Rakesh, husband of the deceased, had illicit relationship with Jasuben, a divorcee. Despite the said situation two children were born in the wedlock but the compatibility between the husband and wife and the harmony of family life could not be sustained. When the first child was three months old, the deceased was driven out by her husband and she came to her parental home and stayed there for sometime. After the intervention of the elders and relatives a settlement was arrived at and thereafter she came to stay in her in-laws house. It was the further case of the prosecution that the husband was keen in his extra-marital affair and that had led to more marital discord and bitterness. The in-laws, as alleged, used to take away the income earned by her. A time came when she was compelled to stay on the terrace of the house where she committed suicide on 4 th of March, 2004.

3. As the case of the prosecution further gets uncurtained, the dead body was cremated without informing the parents of the deceased and the factum of the death was reported by the father-in-law of the deceased on 14 th of March, 2004 and eventually the mother of the deceased came to know about the death on 17 th of March, 2004 and thereafter reported at the Police Station in Jamnagar. After the criminal law was set in motion, the investigating agency proceeded with the investigation and recorded the statements of 25 witnesses and eventually placed the charge-sheet under Sections 498A, 306 and Section 201 read with Section 114 of the Indian Penal Code, before the competent court. After the charge-sheet was filed, the learned Magistrate committed the matter to the Court of Session.

4. The accused persons abjured their guilt and wanted to be tried.

5. During the trial, the prosecution in order to establish the charges levelled against the accused persons, examined 25 witnesses and exhibited certain documents.

6. The learned trial Judge placing reliance on the ocular as well as the documentary evidence came to hold that four accused persons, namely, father-in-law A-1, husband A-2, mother-in-law A-3 and the woman with whom the husband was having illicit relationship, A-4, guilty of the offences However, the trial Judge acquitted the elder brother of the husband and his wife for lack of evidence.

7. Being dissatisfied with the aforesaid judgment of conviction and order of sentence, the accused filed Criminal Appeal No. 444 of 2005. As stated earlier, the State preferred Criminal Appeal No. 2408 of 2005 for enhancement of sentence and Criminal Appeal No. 2410 of 2005 assailing the judgment of the acquittal of two accused persons.

8. The High Court appreciating the evidence brought on record, declined to interfere in the appeals preferred by the State and resultantly all the appeals stood dismissed.

9. Be it noted, the principal witnesses on whom the prosecution relied are Dakshaben Shantilal Shah, PW-9, a social worker at Vikas Vidhyalay (Vadhvan), Miraben Devsinhbhai, PW-21, sister of the deceased, Champaben Devsinhbhai, PW-18, mother of the deceased, Kanaiyabhai Devsinhbhai, PW-19, brother of the deceased and Natubhai Hirabhai, PW-17, Sarpanch of village Rajsitapur.

10. Accused persons in their statements recorded under Section 313 took the plea that there was a divorce between the deceased and the accused No. 2, her husband; that she was staying on the terrace of the house; that she committed suicide by consuming poison; and that the accused persons had no role in it. The defence, to substantiate its plea, examined one witness and got two documents exhibited.

11. We have heard Mr. Harish Raichura, learned counsel for the appellants and Mr. Anurag Ahluwalia, learned counsel for the State.

12. On a careful scrutiny of the findings of the learned trial Judge and that of the High Court, it is noticeable that both the Courts have found that cruelty, as alleged by the prosecution under Section 498A IPC was established as a result of which the deceased committed suicide. It is quite clear from the findings and evidence on record that there was no demand of dowry. The learned trial Judge as well as the High Court has proceeded on the base that there was cruelty as per the first limb of Section 498A IPC.

13. The singular issue that requires to be scrutinized is whether there was such cruelty by the husband and his relations that could have driven the deceased to commit suicide. The stand of the accused persons, as has been indicated hereinabove, was that the husband had already divorced the deceased and she was staying on the terrace. On a proper x-ray of the material brought on record, it is manifest that the prosecution has brought on evidence, three documents, exhibits 65 to 67, on record to show that there was divorce. The sister of the deceased, Miraben Devsinhbhai, PW-21, has categorically deposed that she had talked to the deceased on telephone before her death and the deceased had told her that there has been a divorce between her husband and herself and she was staying on the terrace of the house and will leave for the parental home after the ‘Holi’ festival.

14. The documents that have been produced by the prosecution, namely, Exhibits 67 to 69 have not been believed by the learned trial Judge as well as the High Court on the ground that there is some unacceptable discrepancy.

15. At this juncture, it is appropriate to mention that the Holi festival in the said year fell on 6.3.2004 and the occurrence took place on March 4, 2004. It is also noticeable that the sister of the deceased had volunteered to speak about the conversation of divorce. The document shows that there was a divorce as per the customs. There is material on record to show that she was staying on the terrace. In this factual backdrop what is to be seen is whether there has been a cruelty which compelled her to commit suicide. In this regard, we may fruitfully refer to Section 498A of the IPC, which reads as under:

“ 498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun ished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.—For the purpose of this section, “cruelty” means—

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

16. This Court in Girdhar Shankar Tawade V. State of Maharashtra, examining the scope of 498A, has observed thus:

“ The basic purport of the statutory provision is to avoid “cruelty” which stands defined by attributing a specific statutory meaning attached thereto as noticed hereinbefore. Two specific instances have been taken note of in order to ascribe a meaning to the word “cruelty” as is expressed by the legislatures: whereas Explanation ( a ) involves three specific situations viz. ( i ) to drive the woman to commit suicide or ( ii ) to cause grave injury or ( iii ) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in Explanation ( b ) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury: whereas one is patent, the other one is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of “cruelty” in terms of Section 498-A.”

17. In Gurnaib Singh V. State of Punjab, while analyzing the aforesaid provision, it has been opined that Clause (a) of the Explanation to Section 498A IPC defines cruelty to mean “any willful conduct which is of such a nature as is likely to drive the woman to commit suicide”. Clause (b) of the Explanation pertains to unlawful demand and Clause (a) can take in its ambit mental cruelty.

18. From the aforesaid authorities it is quite clear that the first limb of Section 498A, which refers to cruelty, has nothing to do with demand of dowry. In the present case, in fact, there is no demand of dowry. If the evidence is appropriately appreciated, the deceased was pained and disturbed as the husband was having an illicit affair with the appellant no.4. Whether such a situation would amount to cruelty under the first limb of Section 498A IPC is to be seen.

A two-Judge Bench of this Court in Pinakin Mahipatray Rawal V. State of Gujarat, while dealing with extra marital relationship, has held thus:

“ Marital relationship means the legally protected marital interest of one spouse to another which include marital obligation to another like companionship, living under the same roof, sexual relation and the exclusive enjoyment of them, to have children, their upbringing, services in the home, support, affection, love, liking and so on. Extramarital relationship as such is not defined in the Penal Code. Though, according to the prosecution in this case, it was that relationship which ultimately led to mental harassment and cruelty within the Explanation to Section 498-A and that A-1 had abetted the wife to commit suicide.”

xxxxx

xxxxx

xxxxx

“ We are of the view that the mere fact that the husband has developed some intimacy with another, during the subsistence of marriage and failed to discharge his marital obligations, as such would not amount to “cruelty”, but it must be of such a nature as is likely to drive the spouse to commit suicide to fall within the Explanation to Section 498-A IPC. Harassment, of course, need not be in the form of physical assault and even mental harassment also would come within the purview of Section 498-A IPC. Mental cruelty, of course, varies from person to person, depending upon the intensity and the degree of endurance, some may meet with courage and some others suffer in silence, to some it may be unbearable and a weak person may think of ending one’s life. We, on facts, found that the alleged extramarital relationship was not of such a nature as to drive the wife to commit suicide or that A-1 had ever intended or acted in such a manner which under normal circumstances, would drive the wife to commit suicide.”

The Court further proceeded to state:

“ Section 306 refers to abetment of suicide. It says that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment for a term which may extend to 10 years and shall also be liable to fine. The action for committing suicide is also on account of mental disturbance caused by mental and physical cruelty. To constitute an offence under Section 306, the prosecution has to establish that a person has committed suicide and the suicide was abetted by the accused. The prosecution has to establish beyond reasonable doubt that the deceased committed suicide and the accused abetted the commission of suicide. But for the alleged extramarital relationship, which if proved, could be illegal and immoral, nothing has been brought out by the prosecution to show that the accused had provoked, incited or induced the wife to commit suicide.”

19. After holding as aforesaid, the Court found on facts and especially referring to suicide note that one can infer that the deceased was so possessive of her husband, and was always under an emotional stress that she might lose her husband and that apart she had exonerated the husband and accordingly it would not come within the scope and ambit of Section 306 IPC.

20. Coming to the facts of the present case, it is seen that the factum of divorce has not been believed by the learned trial Judge and the High Court. But the fact remains is that the husband and the wife had started living separately in the same house and the deceased had told her sister that there was severance of status and she would be going to her parental home after the ‘Holi’ festival. True it is, there is some evidence about the illicit relationship and even if the same is proven, we are of the considered opinion that cruelty, as envisaged under the first limb of Section 498A IPC would not get attracted. It would be difficult to hold that the mental cruelty was of such a degree that it would drive the wife to commit suicide. Mere extra-marital relationship, even if proved, would be illegal and immoral, as has been said in Pinakin Mahipatray Rawal (supra), but it would take a different character if the prosecution brings some evidence on record to show that the accused had conducted in such a manner to drive the wife to commit suicide. In the instant case, the accused may have been involved in an illicit relationship with the appellant no.4, but in the absence of some other acceptable evidence on record that can establish such high degree of mental cruelty, the Explanation to Section 498A which includes cruelty to drive a woman to commit suicide, would not be attracted.

21. Presently, adverting to the involvement of the other accused persons, that is, appellant nos. 1, 3 and 4, we find that there is no allegation of any kind of physical torture. The evidence brought on record against them with regard to cruelty is absolutely sketchy and not convincing. It has been alleged that the mother-in-law used to rob her money which she earned as wages. The said fact has really not been established. As far as appellant no. 4, Jesuben, is concerned, there is only one singular allegation that at one public place, i.e. in a ‘mela’, she had threatened the deceased that she would be divorced by her husband. On the basis of the said evidence, it is difficult to sustain the conviction under Sections 306 and 498A IPC. Once we are holding that the accused-appellants are not guilty of the offence under Section 306 and 498A IPC, the conviction under Section 201 IPC is also not sustainable.

22. In view of the aforesaid analysis, the appeal is allowed, the conviction and sentence of all the appellants are set aside. As they are on bail, they be discharged of their bail bonds.

*******************J* [DIPAK MISRA]

*******************J* [SUDHANSU JYOTI MUKHOPADHAYA]

NEW DELHI

FEBRUARY 18, 2015.

PDF uploaded to http://1drv.ms/1vZsTQ9

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist

No maintenance to adulterous wife, but mere depositions not sufficient, adultry to be proved-Delhi HC

Notes
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* Husband paying interim maint of rs. 5000 p.m. in CrPC 125 case
* Wife claims that husband is having huge income etc
* Husband appeals wife’s interim maintenance saying wife is living in adultry
* To prove his case, Husband has filed a deposition by a third party (in an adultry police complaint). In that deposition the third party / man says this wife was staying with him !!
* HC does not accept that deposition as sufficient proof and sends case back to Trial court

*****************************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. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF – Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. 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
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Delhi High Court

Arun Kumar vs Meenu Kumar on 31 May, 2007

Author: S R Bhat

Bench: S R Bhat

JUDGMENT S. Ravindra Bhat, J.

1. This petition seeks interference with the order of the Additional Chief Metropolitan Magistrate (hereafter referred to as “the trial Court”) dated 9th June, 2005. The trial Court was dealing with an application under Section 125 Cr.P.C. filed by the respondent/ wife. The trial Court proceeded to grant interim maintenance of Rs. 5,000/- per month w.e.f 01.06.05.

2. The marriage between the parties took place on 08.10.99. It is a common case of the parties that the complainant/respondent was the second wife of the petitioner who had three major married children from his first marriage. It is also a fact that the complainant too had three children from her earlier marriage. The allegations in the complaint, inter alia, extended to mis-behavior and acts of cruelty. It was alleged that the petitioner/ husband had vast assets and was in possession of income to the tune of Rs. 78,000/- per month. It was stated that the petitioner had seven immovable properties. The trial Court after considering the materials, directed the petitioner to pay Rs. 5,000/- per month to the complainant.

3. This order has been impugned for two reasons. One, that the Court has overlooked Section 125(4) which stipulates, inter alia, that if the wife lives in adultery there would be no order for maintenance including interim maintenance. Learned Counsel for the petitioner relied upon an affidavit filed by one Mr. Ashok Soni dated 05.04.05. In that, the deponent suggested, inter alia, that the complainant/wife stayed with him. The affidavit was filed in support of an application seeking pardon in a criminal complaint filed by the present petitioner against his wife and that deponent. It is submitted that the police filed a final report in those proceedings before the concerned Court.

4. Learned Counsel contended that in the light of the above facts, the respondent/wife was dis-entitled to any relief and, therefore, the approach of the trial Court in granting interim maintenance was irregular and liable to be interfered with.

5. The petition was resisted on behalf of the complainant/ respondent. It was contended on her behalf that the petitioner has vast properties and by his conduct in not complying with the Court’s orders (which had restrained him from dispossessing the complainant from the properties where she was residing) he has forfeited his right to press this petition. It was also contended that the provisions of Section 125(4) Cr.P.C. have also to be considered in the light of the Protection of Women from Domestic Violence Act, 2005 which entitles the aggrieved spouse to have a residential right in the matrimonial home.

6. Learned Counsel for the respondent/wife relied upon the judgment of the Punjab & Haryana High Court in the case reported as Jagir Singh v. Jasbir Kaur 2005 Crl.L.R. 572.

7. The above factual matrix would show that the complainant applied for maintenance under Section 125 Cr.P.C. The trial Court, after considering the averments proceeded to award the amount of Rs. 5,000/- per month as interim maintenance. The contention of the petitioner, to the extent that the trial Court’s order does not deal with the averments in the reply of the petitioner/husband, is correct. Facially, there is no discussion by the trial Court about the reply of the husband who is the petitioner. The question, therefore, is whether this amounts to an illegality which requires to be set aside having regard to the circumstances of this case. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

8. Section 125 Cr.P.C. to the extent it is relevant reads as follows:

125. Order for maintenance of wives, children and
parents- (1) If any person having sufficient
means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child,
whether married or not, unable to maintain
itself, or

(c) his legitimate or illegitimate child (not
being a married daughter) who has attained
majority, where such child is, by reason of any
physical or mental abnormality or injury unable
to maintain itself, or

(d) his father or mother, unable to maintain
himself or 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 or such child, father
or mother, at such monthly rate, as such
magistrate thinks fit, and to pay the same to
such person as the Magistrate may from time to
time direct:

Provided that the Magistrate may order the
father of a minor female child referred to in
Clause (b) to make such allowance, until she
attains her majority, if the Magistrate is
satisfied that the husband of such minor female
child, if married, is not possessed of sufficient
means.

[Provided further that the Magistrate may,
during the pendency of the proceeding regarding
monthly allowance for the maintenance under this
sub-section, order such person to make a monthly
allowance for the interim maintenance of his wife
or such child, father or mother, and the expenses
of such proceeding which the Magistrate considers
reasonable, and to pay the same to such person as
the Magistrate may from time to time direct:

Provided also that an application for the
monthly allowance for the interim maintenance and
expenses for proceeding under the second proviso
shall, as far as possible, be disposed of within
sixty days from the date of the service of notice
of the application to such person.

Explanation – For the purpose of this Chapter-

(a) “minor” means a person who, under the
provisions of the Indian Majority Act, 1875 (9 of
1875) is deemed not to have attained his majority;

(b) “wife’ includes a woman who has been
divorced by, or has obtained a divorce from, her
husband and has not remarried.

(2) xxxx        xxxx        xxxx        xxxx
xxxx (3) xxxx        xxxx        xxxx
xxxx        xxxx

(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.

9. In this case, the reply of the husband was filed on 19.11.03. There appears to be a supplementary affidavit which was replied on 26.03.04 by the wife. It is stated by counsel that the affidavit of Shri Ashok Soni was brought on record of the trial Court through an application dated 15.04.05. The affidavit of Shri Ashok Soni is dated 05.04.05

10. In the judgment of the Punjab & Haryana High Court in Jagir Singh’s case the Court held as follows:
In this petition, counsel for the petitioner
raised two-fold submissions, firstly, that since
the petitioner has alleged that the respondent-
wife is living in adultery, therefore, no interim
maintenance can be granted to her in view of
amendment made in Sub-Section (4)of Section 125
Cr.P.C. by the Legislation vide Act No. 50 of
2001. Vide this amendment words “allowance for
maintenance or the interim maintenance and
expenses of proceedings, as the case may be”,
have been added in Sub-Section (4), which provide
that no wife shall be entitled to receive an
allowance for maintenance or interim maintenance
if she is living in adultery. Learned Counsel for
the petitioner, thus, contends that intention of
Sub-Section (4) is very much clear that no wife,
who is living in adultery, shall be entitled to
any allowance including interim maintenance. It
is further contended that world “allowance” not
only includes the initial maintenance amount, but
includes the interim maintenance amount also.
Therefore, the respondent-wife, in the case in
hand, who is living in adultery, is not entitled
to any allowance under Sub-Section (4) of Section
125 Cr.P.C. Secondly, he submitted that
respondent No. 2 is major, therefore, she is not
entitled for maintenance. However, he admitted
that respondent No. 2 is still unmarried.

5. I have considered the aforesaid two
submissions made by the learned Counsel for the
petitioner and am not inclined to accept the
same. In my view interim maintenance cannot be
denied to the respondent-wife merely on the
ground that petitioner-husband has made an
allegation that she is living in adultery. Denial
of interim maintenance just on the basis of such
an allegation would not be justified until and
unless the allegation is substantiated by any
cogent evidence by the husband

11. Learned Counsel for the petitioner sought to distinguish the decision in the case on the ground that factual matrix was facially different and this was not a case of mere allegation but there were some other proofs also.

12. The contextual backdrop of each case would of course differ, yet the ratio of the decision by the Punjab & Haryana High Court is that the Court must adopt a cautious approach, and should not rush into presumption on the basis of allegations. The allegation can be in the form of reply or affidavit. In this case what emerges from the record at least today is that the petitioner has sought to bring on record the affidavit of the person who was seeking pardon. The genuineness or otherwise of such an affidavit and the circumstance under which it was sworn cannot be divorced from the facts of this case. It is true that the trial Court has not adverted to it but there cannot be an assumption that this was pressed, and yet consciously not adverted to.

13. Another aspect which has to be seen is that the contents of the affidavit are untested; though the deponent mentioned that the complainant stayed with him, the next assumption that such a residence amounted to adultery, would be drastic. In any form of proceeding, to conclude adultery, where civil consequences spelt out under Section 125(4) are to be inferred, the party likely to be affected has to be given reasonable and fair opportunity to meet and rebut the charge. Though Section 125 Cr.P.C. is in the nature of a welfare measure, and perhaps falls within the description of “special provision” under Article 15(3) of the Constitution, the exception under Section 125(4), loaded as it is in gender unequal terms, against the woman, has to be made recourse to with care and circumspection. The enacting part of Section 125, which entitles a woman to maintenance, makes makes no distinction whether the cause for her approaching the Court is adultery or infidelity of the husband; yet, the possible effect, viz estrangement and the situation of her living in adultery, is sought to ground a denial of that welfare measure. Without entering into the logic of this enforcement of morality through the legal process – which has to receive a wider debate, what can be said is that the Court should loath to rush into conclusions or a priori assumptions, since Section 125(4) enacts an exception. It should be satisfied about the soundness of such a charge, and cannot be content to elevate allegations into findings. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

14. In view of the above discussion and after taking into consideration the overall conspectus of the facts of this case, I am of the opinion that the trial Court should proceed and dispose off the application under Section 125 Cr.P.C finally within four months.

15. It is a matter of record that the petitioner has already paid 50 per cent of the amount which works out to Rs. 60,000/-. The balance shall be deposited in the trial Court to be appropriated having regard to the final outcome of the proceedings under Section 125 Cr.P.C. The parties shall appear before the trial Court on 10th July, 2007.

The petition is disposed off in the above terms.

Order dusty.

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn’t given up, Male, activist