The main legal point established in the judgment is that a husband cannot refuse to maintain his wife if she has ceased to live in adultery, even if she had maintained an adulterous relationship in the past.

I.A. Ansari, J.

1. This revision has raised a very interesting question of law and the question is this: Whether a wife can seek maintenance from her Husband, under Section 125, Code of Criminal Procedure, even if she had lived in adultery and, if so, under what circumstances?

2. The question, posed above, has arisen out of the judgment and order, dated 26.6.2007, passed, in Criminal Revision No. 28(0)4/2006, whereby the learned Sessions Judge, Darrang, has directed, the present Petitioner, as husband of the opposite party herein, to pay to her maintenance @ Rs. 500 per month by setting aside the order, dated 11.7.2006, passed in Misc. Case No. 72/2005, by the learned Judicial Magistrate.

3. I have heard Mr. H.R.A. Choudhury, learned senior Counsel, appearing on behalf of the Petitioner, and Mr. M.H. Choudhury, learned Counsel, appearing on behalf of the opposite party.

4. While considering the revision, what needs to be noted is that it is not in dispute that both the parties to the maintenance proceeding are Muslim by faith and a valid marriage, (sic) of the Muslim personal law, was solemnized between them. It is also not in dispute that following their marriage, (sic) the parties to the maintenance proceeding cohabited as husband and wife. In fact, it is also not in dispute that the opposite party presently resides with her parents at her paternal house and the present Petitioner never paid any maintenance allowance to her since after the time the opposite party had left her matrimonial home. In order to justify his refusal to either maintain the opposite party or to pay for her maintenance, the Petitioner contended, and even, now, contends, in this revision, that the opposite party herein had eloped.with a relative of the present Petitioner, she swore an affidavit dissolving her marriage with the present Petitioner and left with her paramour as her husband. The opposite party disputes and denies the accusations, so made, against her and claims, on the other hand, that she had been abducted by a relative of her husband, (i.e., the present Petitioner), and upon her being so abducted, the present Petitioner had lodged, in this regard, a First Information Report and it was only after her recovery by police, from the house of her abductor, that her husband refused to take her back to her matrimonial home and, having been left with no option, she had to go back to, and take shelter at, her paternal house and, since then, she has been living with her parents, who are poor and cannot maintain her. This apart, according to the opposite party, she has no independent source of livelihood.

5. Even if, for a moment, it is assumed that what the present Petitioner contends is true that the opposite party had sworn an affidavit dissolving her marriage with the present Petitioner, the fact of the matter remains that a Muslim marriage cannot be dissolved by a wife by swearing an affidavit. This position of law is, in fact, not in dispute. Notwithstanding, therefore, the accusations made against the opposite party that she had been, once, living, with her paramour, the fact of the matter remains that the marriage-tie between the present Petitioner and the opposite party having not been snapped according to the law, applicable to the parties, their marriage-tie still, survives irrespective of fact as to whether the opposite party had voluntarily gone with her paramour and lived with her paramour or not. Thus, the crucial facts, which are relevant and necessary for determination of the case, were these: Whether the parties to the maintenance proceedings were husband and wife and whether the present Petitioner, as husband, refused to maintain the opposite party and whether such refusal is legally sustainable?

6. When the marriage-tie between the parties to the maintenance proceeding had survived and still survives, the present Petitioner cannot refuse to maintain the opposite party. His refusal to maintain is on the ground that the opposite p