IMPORTANT POINT
The burden of proof lies with the husband to establish continuous adultery to deny maintenance; isolated incidents are insufficient.

JUDGMENT :

ARUN DEV CHOUDHURY, J.

1. Heard Mr. Y. S. Mannan, learned counsel for the petitioner. None appears for the respondent wife.

2. The present petition is filed by the petitioner assailing a judgment dated 27.02.2020 passed by the learned Sessions Judge, Udalguri in Criminal Revision No. 5/2017. By the aforesaid revisional order, the revision preferred by the respondent against judgment dated 7.6.2017 passed by the learned SDJM, (S) Udalguri in MR Case No. 21/2015 was modified by granting maintenance to the respondent wife, which was originally denied by the learned Magistrate on the ground that she is living in adultery, though maintenance in favour of minor child was granted by the Trial Magistrate.

3. The respondent wife filed MR Case No. 21/2015 under Section 125 Cr.P.C., before the learned Sub Divisional Judicial Magistrate (S) Udalguri, seeking maintenance for herself and for her minor daughter. In the aforesaid proceeding, the petitioner as respondent filed written statement. In his written statement, though he admitted the respondent to be his wife and that he had fathered the minor daughter, however, raised an issue that his wife is living in adultery with his own elder brother and therefore, she is not entitled for any maintenance in terms of Section 125(4) of Cr.P.C.

4. During the course of proceeding, both the parties laid evidence. To prove that his wife is living in adultery, the husband adduced evidence of his elder brother’s wife and himself and also produced some documents relating to a village Bichar to project that these two persons were living in adulterous relation and that they admitted such adulterous relation in the said Bichar.

5. The learned trial court though granted maintenance in favour of the minor daughter, however, upheld the contention of the husband of such adultery of his wife on the following counts:

I. That the respondent wife in her evidence-in-affidavit did not deny the allegation of adultery made in the written statement by the husband.

II. According to the learned trial court, though a photocopy of the proposal in the village mel was annexed as Annexure-B in the written statement, such fact has not been denied by the wife in her examination-in-chief and as per the said document which is a minutes of meeting, both the wife and the brother of the husband admitted their relation.

III. Though there is no specific allegation, since when both of them started the aforesaid relationship and there is no evidence adduced by the husband to prove that both of them maintained the relationship prior to the year 2015, however, as the first party i.e. wife did not deny such allegation made in the written statement, in her evidence-in-affidavit, coupled with the evidence of DW-6, the wife of the person with whom the petitioner’s wife was maintaining an adulterous relation, it was held that the wife is not entitled for maintenance in terms of section 125(4) of the Cr.P.C.

6. Such decision was reversed by the Revisional Court in Criminal Revision No. 5/2017 preferred by the wife, relying on the decisions of Sau. Chanda P. Waded –Vs- Preetam G. Waded and Another reported in 2002 Crl.LJ 1397 (Bom) , Smt. Rachita Rout –Vs- Basanta Kumar Rout reported in 1987 Crl.L.J. 655 and Baishnab Charan Jena –Vs- Ritarani Jena reported in 1993 Crl.L.J 239, and held that merely proving one or more instances of lapses in the character of the wife, is not sufficient to absolve the husband from his liability to pay maintenance and that such singular instance would not be sufficient to deny maintenance and such adultery should be continuous. Accordingly, it was held that the respondent wife shall also be entitled for maintenance along with her minor daughter and accordingly, the revision was allowed.

7. In the aforesaid backdrop, Mr. Y. S. Mannan, the leaned counsel, argues