S.S. Manickam vs Arputha Bhavani Rajam : 1980 Cri.L.J 354 : 1979 MadLW (Cri) 143 : 1980 Madlj (Cri) 327 : 1980 MLR 139 : 1979 LRC Online 04 (Mad)
Section 125(4)- Is living in adultery-Meeting-While considering the words provided in S. 125(4) of CrPC "is living in adultery" It would not take into its fold stray instances of lapses from virtue, it would not also mean that wife should be living in adultery on the date of petition-Proper interpretation would be that there should be proof of adulterous living shortly before or after the petition, shortly being interpreted in a reasonable manner viewing it in the light of fact of the case- when husband challenges the claim of maintenance of his wife, alleging that his case and prove the allegations of such adulterous life on the part of wife by letting in evidence of her continued adulterous conduct at or about the time of application and the the wife against whom such a charge is made ought to be given an opportunity to rebut such allegation-Provisions do not apply to a divorce wife.
Held : Section 125 of the Criminal Procedure Code, 1973 (Act I of 1974), which is in essence not punitive but preventive rather than remedial, has been enacted with the object of enabling deserted wives, helpless and deserted children and destitute parents, to secure the much needed relief, so as to prevent vagrancy. The scheme of the section, as far as wives are concerned is self-contained and rests on two primary concepts, viz., (I) that the husband must maintain his wife, and (2) that the wife must be virtuous and live with her husband. This section is not intended to be used by a wife whose marital tie is in subsistence, to claim maintenance on the grounds other than neglect or refusal to maintain. The circumstances which disentitle a wife to obtain an order for maintenance, as contemplated under Sub-section (4) of Section 125, notwithstanding the existence of the foundation and the conditions for the exercise of jurisdiction, are (1) her living in adultery, (2) her refusal to live with her husband without sufficient cause, and (3) the fact that the husband and wife have been living separately by mutual consent. Subsequent to the passing of an order awarding maintenance in favour of the wife, as per Sub-section (5) of Section 125 on proof of any one of the circumstances mentioned supra, the Magistrate shall cancel the order passed in her favour. Thus, the right of a wife whose marital tie has not been untied, to claim maintenance from her husband is subject to the condition that she is unable to maintain herself and also subject to the conditions enumerated under Sub-sections (4) and (5). It is to be noted that Explanation (b) to Sub-section (1) of Section 125 of the new Criminal Procedure Code, with regard to the right to claim maintenance, states that the expression 'wife' includes a woman who has been divorced by or has obtained a divorce from, her husband, and has not remarried. There was no such Explanation in the old Code. The effect of the introduction of this Expl. is that even a woman who has been divorced from her husband or has obtained a divorce from him, is entitled to maintenance from him till she gets remarried, provided she is not living in adultery till such time. Of course, the other conditions enumerated under Sub-sections (4) and (5) are not applicable to 'such a divorced woman. The defence of the revision-petitioner in the present case is that his wife, the respondent, is disentitled to claim any maintenance from him since she has been and 'is living in adultery'. Though the Court below has found that the respondent was living in adultery with P.W. 2 till 28-5-1975, yet it has granted maintenance to the respondent on the ground that there is neither allegation nor any evidence that the respondent was living in adultery from 28-5-1975 till the date of the petition viz., 3-12-1975. In the circumstances, we have to examine whether the said order can be sustained or whether, as contended by the revision-petitioner, the respondent has disqualified herself from claiming any maintenance on the ground of her adulterous life.
The quintessence of all the judicial provincememts 'is to the effect 'that when the husband challenges the claim for maintenance of his wife, alleging that his wife is living in adultery, the husband ought to begin his case and prove the allegation of such adulterous life on the part of the wife by letting in evidence of her continued adulterous conduct at or about the time of the application and then the wife against whom such a charge is made ought to be given an opportunity to rebut such" allegation. Panduranga Rao J., in Kista Pillai's case, whose decision has been oft quoted with approval, held in that case that the continued adulterous conduct oh the part of the woman at or about the time of the application would mean such conduct shortly before or shortly after the application was made, interpreting the word 'shortly' in a reasonable manner. What is reasonable would depend upon the facts and circumstances of each case. In my opinion, it, would be quite meaningless and even absurd to interpret the words 'is living in adultery' in the sense that the husband, in order to succeed in his defence against the maintenance claim, must prove that his wife was living in adultery on the date of the application itself, as contended by Mr. I. Subramaniam. If one accepts such an interpretation, it would lead to ' this absurdity : Supposing a wife, who was hitherto openly living an adulterous life for a continuous period, refrains from such a conduct for a single day or for a few days or even for a few months, either wantonly to enable her to file a petition under Section 125, Cr. P. C. or due to the fact that her paramour is away from the station, and then files a petition for maintenance against her husband, can it be said that she is not guilty of the conduct of 'living in adultery' as contemplated Under Section 125 (4) which would disqualify her from claiming maintenance? I may give one more reason why such an interpretation has no, substance. If, for example, a wife lives an impure life by her adulterous conduct continuously and openly with her paramour and begets a child through him and then pretends herself to have turned a good leaf, claiming that she has put an end to her impure life and started a virtu-bus one, about a few months prior to her filing an application for maintenance, could it be said that she is entitled to maintenance from her husband under Section 125? The position may toe different if the wife has fallen a prey due to various circumstances for a single or occasional lapses from her virtue and thereafter repents for such lapses and makes sincere and genuine attempts to obtain the pardon of her husband for her misconduct and thereafter returns to purity and starts an unalloyed and chaste life. In such cases, the wife would be quite justified in claiming maintenance and the Court also would be inclined to extend its arms of sympathy so that she may not be once again thrown to a sinful life.
The revision is allowed and the order of the lower Court granting maintenance to the! respondent is set aside.