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IN THE HIGH COURT OF JUDICATURE AT PATNA
JITENDRA KUMAR, J.
Criminal Revision No. 1080 of 2019
(18.3.2025)
Suman Devi @ Suman Gupta & Anr. ... Petitioners
vs.
State of Bihar & Anr. ... Respondents
Criminal Procedure Code, 1973 – Section 125 – Maintenance application – Dismissal – A legally wedded wife is entitled to get maintenance from her husband, if she is living separately from her husband with sufficient reason, but not living in adultery, and she has no means to maintain herself and husband, despite having sufficient means, neglects or refuses to maintain her – Adultery is an offence against one's spouse – If a married person establishes sexual relationship with someone other than his/her spouse, he/she commits adultery – Under Section 125 Cr.P.C. wife/petitioner is disqualified for getting maintenance from her husband if she is living in adultery – Physical relationship of any unmarried lady with someone else prior to her marriage is beyond reach of disqualification as provided under Section 125 Cr.P.C. on the basis of "living in adultery". (Paras 36 and 38)
Criminal Procedure Code, 1973 – Section 125 – Denial of maintenance – "Living in adultery" is distinct from "committing adultery" – "Living in adultery" denotes continuous course of conduct and not isolated acts of immorality – One or two lapses from virtues would be acts of adultery but would be quite insufficient to show that woman was "living in adultery" – A mere lapse, whether it is one or two, and a return back to a normal life cannot be said to be living in adultery – If lapse is continued and followed up by a further adulterous life, woman can be said to be "living in adultery" – In present case, husband has only made one line bald allegation that even after marriage, his wife is living in adultery – But no details thereof with reference to time, place and adulterer are given in his pleadings – Finding of Family Court that she was living in adultery is erroneous in eye of law – Premature birth of a child is an usual phenomenon – Petitioner No. 2 is legitimate son of O.P. and he is entitled to maintenance from his father/O.P.. (Paras 39, 40, 46 and 47)
Criminal Procedure Code, 1973 – Section 125 – Family Courts Act, 1984 – Sections 7, 8 and 20 – Maintenance proceeding – Scope and ambit – Strict standard of proof is not required in proceeding under Section 125 Cr.P.C. unlike matrimonial proceedings, where strict proof of marriage or paternity is essential – In revisional jurisdiction, High Court has no power to reassess evidence and substitute its own finding in regard to positive finding regarding validity of marriage or paternity of child, unless there is patent perversity of finding of fact or error of jurisdiction or that of law – But in case of negative finding of Court in regard to validity of marriage or paternity of child, High Court is required even in revisional jurisdiction to re-evaluate evidence and come to a conclusion whether findings or conclusions reached by Family Court are legally sustainable or not, because on account of negative finding, child is bastardized and wife is branded as unchaste woman – Validity of marriage or paternity of a child in a proceeding under Section 125 Cr.P.C. is tentative and not final and it is always subject to order of any Civil Court or Family Court, which are Competent Courts to conclusively decide any marital status of a party or legitimacy or illegitimacy of a child – If Civil Court or Family Court passes any decree in regard to validity of marriage or paternity of child not in consonance with finding of this Court in this proceeding under Section 125 Cr.P.C., decree of Civil Court/Family Court would prevail and party concerned would be at liberty to modify order passed under Section 125 Cr.P.C, by moving application under Section 127 Cr.P.C. – Impugned order set aside and O.P. No. 2 directed to pay monthly maintenance to his wife and minor son. (Paras 50, 51, 58 and 59)
Jitendra Kumar, J. – The present revision petition has been preferred by the petitioners against the impugned order dated 22.06.2019, passed by learned Principal Judge, Family Court, Gopalganj, in Maintenance Case No. 156 of 2013, C.I.S. Reg. No.751 of 2013, whereby learned Principal Judge has dismissed the application of the petitioners under Section 125 Cr.PC for maintenance.
2. The factual background of the case is that the petitioners herein filed one application bearing Misc. Case 156 of 2013 under Section 125 Cr.PC on 12.08.2013 in the Court of Principal Judge, Family Court, Gopalganj, against the Opposite Party No. 2 herein seeking maintenance, stating therein that the petitioner No. 1 is married to Opposite Party No. 2 on 6.3.2012 as per Hindu rites and customs and petitioner No. 2 is the son born out of the wedlock.
3. As per further statement, petitioner No. 1 joined the matrimonial home of her husband/Opposite Party No. 2 on 8.3.2012. On 21.8.2012, she was taken by her husband/Opposite Party No. 2 to Mumbai where he was working in Indian Navy having monthly Salary of Rs. 35,000/-. After birth of the son/petitioner No. 2, the Opposite Party No. 2/husband started harassing her in different ways. He used to even abuse and beat her. The Opposite Party No. 2 also developed illicit relationship with one lady. He subjected the petitioner No. 1/wife to beating on several occasions and ultimately on 19.01.2013, she along with her son was ousted from the matrimonial home. Thereafter, she went back to her Maikey. Subsequently, one panchayati was held at the house of Opposite Party No. 2 and there was a settlement between both parties. As per settlement, the petitioner No. 1 along with her son again started living with her husband, but again on 18.04.2013, she was ousted from the matrimonial home by the Opposite Party No. 2/husband and since then she is living at her parent’s house.
4. It is also stated that the petitioners have no means to maintain themselves, whereas the Opposite Party No.2 is a government employee earning 35,000/- rupees per month and also having ten bighas of agricultural land earning annual income of Rs. 2,00,000/- from the cultivation. The Opposite Party No. 2 has also market place in Lucknow getting monthly rent or Rs. 25,000/-. The petitioners have claimed for 20,000/- per month for their maintenance from O.P. No. 2.
5. On notice, the Opposite Party No. 2 appeared and filed his written statement wherein he has taken objection that the petitioners are not entitled to get any maintenance, claiming that the petitioner No. 1/wife was already pregnant prior to the marriage with someone else and she concealed her previous pregnancy from him at the time of her marriage with him and petitioner No. 2 is born out of that pregnancy and hence, he is not his legitimate son. After the birth of petitioner No. 2, DNA test was conducted which confirmed that he is not his son. It is also claimed that his wife/petitioner No. 1 is still living in adultery.
6. He has admitted that he is doing service in Indian Navy in class ‘D’, but he has denied that his monthly income is of Rs. 35,000/- and claims that his take home salary is only Rs.10,000/- after all deductions and payment of installment of bank loan. He has also claimed that his wife is a beautician and runs a beauty parlour having monthly income of Rs. 25,000/-.
7. He has also stated that he has filed one matrimonial petition under Section 12 of the Hindu Marriage Act for annulment of the marriage.
8. During trial following witnesses have been examined on behalf of the petitioner: –
(i) P.W.-1 – Pradeep Gupta, who is brother of Petitioner No. 1.
(ii) P.W.-2 - Pawan Kumar Gupta, who is also brother of Petitioner No. 1.
(iii) P.W.-3 – Suman Devi, Petitioner No. 1 herself.
(iv) P.W.-4 – Dilip Kumar Gupta is also brother of Petitioner No. 1.
9. Opposite Party No. 2 examined the following witnesses in his defence: –
(i) O.P.W.-1 – Rajendra Gupta who is brother of Opposite Party No. 2
Wife and legitimate child are entitled to maintenance unless proven living in adultery, with allegations requiring strong substantiation.
Maintenance obligations under Section 125 Cr.PC are upheld, emphasizing the presumption of legitimacy for children born during marriage, which must be rebutted by clear evidence.
Maintenance can be granted under Section 125 Cr.P.C. based on a marriage-like relationship, without strict proof of marriage; primary focus is on neglect and economic capabilities.
Power to adjudicate on the issue of maintenance has been given, at the first instance, to the Magistrate, who may upon being satisfied direct the concerned person to provide such maintenance/monthly ....
A wife living in adultery is not entitled to maintenance if proven by continuous evidence; mere isolated incidents are insufficient.
A wife must demonstrate sufficient reason to refuse cohabitation with her husband to be entitled to maintenance under Section 125 of the Cr.P.C.
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