S.S Manickam v. Arputha Bhavani Rajam : 1980 Cri.L.J. 354 : 1979 MadLW (Cri) 143 : 1980 MadLJ (Cri) 143 : 1980 MadLJ : 1980 MadLJ (Cri) 327 : 1980 MLR 139 :1979 LRC Online 04 (Mad)
Section 125(4)-Maintenance-Entitlement-Husband has established that wife was leading a continuous adulterous life and also was living in such adultery even at or about the time of the filing of the application for maintenance-Order of the court below granting maintenance to the wife alone cannot be sustained.
Held : , the husband-revision petitioner herein who resisted the claim of his wife claiming maintenance, on the ground that she is living in adultery, has discharged the burden cast upon him by letting in evidence, both oral and documentary, by marking the various letters and documents mentioned supra, and ultimately through Ex. P-2i admittedly written by her and addressed to R. W. 4, confessing her sins committed towards her husband, and by examining the very paramour himself viz., R. W. 2, who, even goes to the extent of expressing his sustained desire to take the respondent with him and live with her. After the petitioner has let in the evidence, the respondent had a fair opportunity to rebut the charge levelled against her. In fact, she has examined herself as P. W. 1, Excepting making some bold denial, she has not disproved the allegations. Therefore, it cannot be said that the respondent has not been afforded an opportunity to rebut the charge against her. In fact, in the present revision petition, as pointed out supra, the learned Counsel for the respondent himself is unable to challenge the finding of the Court below that she was leading an adulterous life with R. W. 2 till 28-5-1975. Once the continuous adulterous life of the respondent with R. W. 2 at least till 28-5-1975 is admitted, and one of the letters even discloses that she conceived through R. W. 2, which has now resulted in the birth of her second child, now alive, the natural presumption, until rebutted, is that the respondent did not return to purity of life even after 28-5-1975. It is significant to note that all the letters referred to above are written by the respondent to her paramour, R. W. 2 between June and July of 1975 showing that she has not put an end to her adulterous conduct even after 28-5-1975. The evidence of the revision petitioner is that he came to know of the conduct of his wife only in August 1975 and thereafter took immediate steps to send away his wife to her native village.
It is only afterwards the respondent has come forward with the claim for maintenance. Of course, R. W. 2, has left Madurai and has been residing at Bombay. In these circumstances, the period of interregnum during which the respondent is not proved to have had her sexual relationship with R. W. 2, cannot, in my opinion, be said to have snapped the relationship or love between the respondent and R. W. 2, so as to hold that she is not guilty of the Act of "living in adultery'. The temporary cessation of relationship between the respondent and her paramour cannot be said to be due to the fact that the respondent has returned to a life of purity or that she has turned a new virtuous life...Furthermore, there is no evidence that she ever repented or attempted to obtain any pardon from her husband. On the other hand, she has come forward with the claim making a false and unproved allegation as though she has been neglected by her husband due to her demand to redeem her jewels alleged to have been pledged by him. In other words, this woman, who was all along giving a misleading impression to her husband that she was his loving wife and was a perfectly chaste woman, preserving unsullied the bed of her husband, was in reality leading an adulterous life with her husband's unscrupulous and ungrateful brother R. W. 2, pretending throughout as if she was suffering from some kind of illness or was being overpowered by some evil spirits.
The overwhelming and cogent evidence adduced by the revision petitioner clearly unfolds that the respondent was adopting a treacherous policy of public virtues and private vices clandestinely sharing adulterous bed with her paramour and thereby transgressing all morals. While Section 125, Cr. P.C., requires as a sine qua non for its application, neglect, or refusal to maintain by the husband and contemplates that if a husband had contracted marriage with another woman or keeps a mistress it shall be a just ground for a wife's refusal to live with him. Hence all the more the wife is under an obligation to lead an unalloyed and pure life to lay a successful claim for maintenance. It is needless to say that the mutual fidelity is the legal duty and moral obligation both on the part of the husband and the wife. Even by choosing to live apart from her husband for no acceptable reason, the wife loses her right to obtain maintenance as per the strict letters of Section 125, Cr. P. C. a fortiori when she is leading an adulterous life. The moral principle underlined thereunder is that no woman can fairly claim a right to be kept by two men. Otherwise, it would be contrary to all morality and principle to hold that the woman who is leading a vicious course of life is entitled to claim maintenance from her husband. When the facts and circumstances of the case on hand are examined in the light of the above principles, as I have already pointed out and for the reasons stated supra, the revision petitioner has established that the respondent was leading a continuous adulterous life and also was living in such adultery even at or about the time of the filing of the application for maintenance. Hence I hold that the order of the Court below granting maintenance to the respondent alone cannot be sustained.