A wife is not entitled to maintenance under Section 125 Criminal Procedure Code if she is living in adultery, but a single act of adultery is not sufficient to constitute 'living in adultery'.

B.M. Lal, J.

1. Husband Ravendra Singh has filed this revision against the order dated 22.2.1989 whereby the learned Additional Sessions Judge Umariya, district Shehdol granted maintenance to the non-applicant Wife Smt. Kapsi Bai at the rate of Rs. 200/- per month with effect from 18.2.1986.

2. The short facts leading to this revision are that, factum of legal marriage between the parties is not disputed. However, Smt. Kapsi Bai brought as action against her husband Ravendra Singh invoking the provisions of Sec. 125 Criminal Procedure Code alleging that Ravendra Singh is a man of sufficient means, despite that he started neglecting her and refused to maintain her and as such she is forced to lead a destitute life. However, Ravendra Singh denying the allegations made against him emerged with the plea that Smt. Kapsi Bai is not entitled for maintenance in view of her leading adulterous life. Therefore, taking resort to sub-Section (4) of Section 125 Criminal Procedure Code, contended that her application as made and filed deserves to be rejected. Consequently, the learned Trial Judge, by order dated 18.2.1986 rejected the same.

3. In revision, the first revisional Court granted maintenance as aforesaid, against which this revision is filed.

4. Learned Counsel Shri S.C. Pandey appearing for the applicant/ Husband Ravendra Singh and Ku. M.S. Baghel appearing for the non-applicant/ wife Smt. Kapsi Bai made submissions in support of the respective parties.

5. The short question involved in this revision is that-

"Whether, wife is disentitled to claim maintenance in the absence of any proof that she is living in adultery ?

6. Shri S.C. Pandey learned Counsel contended that the husband Raghavendra Singh caught Smt. Kapsi Bai read handed in compromising position with Jang Bahadur Sharma in the cattle-shed. However, no action was taken by the applicant/husband. This being so, the violation of the marriage bed on the part of wife deemed to have been waived having not taken any appropriate action by the husband immediately. But this is not all, Shri Pandey then contended that just after 4 months of the first incident again Smt. Kapsi Bai was found in a compromising position with the same gue in the cattle shed. Again no immediate action was taken. But after few days it appears that a panchayat was convened and some document purporting to be of mutual compromise were got scribed. Exhibit D-1 dated 12.4.1983. On this basis Shri Pandey contended that the wife Smt. Kapsi Bai is not entitled to claim maintenance under sub-Section (4) of Section 125 Criminal Procedure Code, and the first revisional Court committed an error of law in granting the same.

7. No doubt proceedings under Section 125 cannot no described as a trial for an offence. However, the same also cannot be termed in the nature of civil proceedings. But can be said to be of quasi criminal in nature and this being so, in such proceedings which is of criminal in nature, incriminating evidence resulting in admission cannot be put to vigorous test and ignoring this principle even if some document is taken on record, the same cannot be used against the party concerned. In the instant case, even if Exhibit D-2 is accepted to have been got written by the wife admitting the alleged adultery, the same cannot be looked into being not in consonance with the words 'living in adultery' appearing in Section 125(4) Cr.P.C.

8. Besides this the words used 'living in adultery' in sub-Section (4) of Sec. 125 Cr.P.C. are of limited amplitude, inasmuch as it is for the husband to prove that the wife is continuously committing violation of the marriage bed, indulging in adulterous life, i.e. living in quasi permanent union with Jang Bahadur Sharma with whom according to Ravendra Singh she was caught red banded. To establish this, more than one instance of adultery has to be brought home to the knowledge of the wife, thereby constituting the term 'living in adultery' within the meaning of sub-Section (4)