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IN THE HIGH COURT OF MADHYA PRADESH
Prakash Chandra Gupta, JJ.
Ravi Kiran Arigela v. D. Asha
Criminal Revision No. 8 of 2023 (Indore): against the order dated 11.11.2022 passed by the 2nd Additional Principal Judge, Family Court, Indore, in Miscellaneous Criminal Case No. 578/2016; Decided on 12.3.2024
(1) Criminal P.C. 1973 -- S. 125(4) -- maintenance -- denial on ground of adultery -- adultery has to be continuous --liability to prove is upon husband -- wife can be debarred from maintenance on ground of adultery only when she is actually “living in adultery” at or around time of application for maintenance. (2000) 3 SCC 180 followed. 2022 Livelaw (Del.) 324, 2011 SCC Online MP 2249, 2018 SCC Online MP 1687 and 1999 SCC Online Ker. 64 relied on. [Para 15]
(2) Criminal P.C. 1973 -- S. 125(4) -- maintenance -- denial on ground of adultery -- petitioner/husband pleaded that respondent/wife used to have obscene talk with C at night on mobile phone, she indulged in adultery with C, wanted to reside with him and at present she is residing with C -- but petitioner/husband has not stated anything in his statement that respondent/wife is living adulterous life with C continuously -- petitioner/husband even could not dare to ask about same in crossexamination of respondent/wife -- mere pleading cannot take place of proof without evidence -- not proved that respondent/wife is living in adultery. [Para 16]
(3) Evidence Act, 1872 -- S. 65B -- Family Courts Act, 1984 -- S. 14 -- photographs of adultery -- absence of certificate u/s. 65B of Evidence Act -- Family Court can take such evidence on record which otherwise would be irrelevant or inadmissible as per Evidence Act, if same assists it to deal with dispute effectually -- respondent/wife stated that photographs are not real -- not explained by petitioner/husband that by which mobile phone, by whom and when photographs were clicked -- even on being required by trial Court to furnish certificate u/s. 65B of Evidence Act, petitioner/husband failed to do so -- person by whom photographs were sent not examined by petitioner/husband -- held -- on basis of such photographs, it cannot be concluded that respondent/wife is living in adultery -- though compliance of certificate u/s. 65B of Evidence Act is not mandatory but there is no specific pleading of petitioner in respect of adulterous life of respondent/wife and there is lack of evidence in this respect -- only on basis of such photographs, it cannot be assumed that respondent/wife is living in adultery -- cannot be barred from claiming maintenance. [Paras 18 to 20]
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ORDER
1. This revision petition has been filed by the applicant u/S 19(4) Family Courts Act, 1984 (hereinafter referred as Act 1984) r/w S. 397 and 401 of Cr.P.C., against the order dated 11.11.2022 passed by II Additional Principal Judge, Family Court, Indore, M.P. in Miscellaneous criminal case No.578/2016, whereby the learned trial Court has partly allowed an application u/S 125 of Cr.P.C. and awarded Rs.10,000/- per month maintenance to the respondent/wife from the petitioner/husband.
2. It is an admitted fact that the marriage of the petitioner/husband is solemnized with the respondent/wife as per Hindu ritual and rites on 22.3.2015. It is also admitted that in the case of HMOP No.464/2016, the Additional Family Court, Coimbatore allowed a petition u/S 13(1)(i-a) of the Hindu Marriage Act, 1955, filed by the husband and granted ex-parte decree of divorce between the parties on 14.12.2016, on the ground of cruelty by wife.
3. Facts giving rise to this case are that the respondent/wife during pendency of divorce petition at Family Court, Coimbatore, had filed an application for maintenance u/S 125 of Cr.P.C., stating that few days after the marriage, the petitioner had started to harass the respondent/wife and started to demand Rs.10,00,000/- as dowry and on non-fulfillment of demands, he had started to physically assault her. He did not use to let the respondent/wife talk to her parents and used to tell her that she is ugly. Respondent/wife, in order to save the relation, had borne all the cruelty caused upon her but the petitioner/husband’s behavior did not improve. The petitioner/husband used to get messages and calls from other girls on his phone and when the respondent/wife used to object for the same, he used to harass her. One year before the filing of maintenance application, the petitioner/husband had got the respondent/wife out of his house. Since then, she has been living in a rented room and the petitioner/husband has not arranged anything for her. Respondent/wife is dependent on her father and has no source to maintain herself. While the respondent is working as Botanical Scientist at Botanical Survey Of India from where he receives a monthly salary of Rs.50,000/-. Therefore, she prayed to be given a monthly maintenance of Rs.25,000/- from the petitioner/husband.
4. Husband, in his reply denied all the averments made in maintenance application except the admitted facts and pleaded that the husband had neither demanded any amount as dowry from the wife nor had harassed or subjected her to cruelty for the same. He further submitted that he is posted as Assistant Scientist at Biological Survey Of India from where he receives a good sum of money and he possesses good character. The wife voluntarily had left his company without any reasonable cause. It was also pleaded that the wife used to physically assault him and abuse him and his family members. She is stubborn and insane. Husband had not got her out of his house. It is also pleaded that the wife used to have obscene talk with a man named Chetan Pathak at night hours on her mobile phone. She was indulged in adultery with Chetan Pathak and she wanted to reside with him. At current as well, she is residing with him at Bhopal. The wife has obtained Ph.D. and is currently having a job. Therefore, she is not entitled for maintenance from the husband.
5. Respondent/wife D. Asha examined herself as PW-1 and her friend Supriya Bisen (PW-2). The petitioner examined himself as DW-1.
6. The learned trial Court after considering the evidences adduced by the parties found that the respondent is divorced wife of the petitioner/husband. She is unable to maintain herself. While the petitioner is a Government Servant and earns Rs.69,000/- per month. Therefore, petitioner/husband has all the sufficient means and is able to maintain the respondent/wife. The trial Court further found that the respondent/wife had sufficient cause to stay apart from her husband. Therefore, she is e
A wife living in adultery is not entitled to maintenance if proven by continuous evidence; mere isolated incidents are insufficient.
The court ruled that a wife disqualified from maintenance under Section 125 due to adultery cannot claim maintenance post-divorce if evidence of past conduct supports the claim.
The court emphasized the welfare nature of maintenance laws and the need to prevent destitution, holding that grounds of cruelty, adultery, and desertion did not disentitle the respondent from receiv....
The duty of a husband to provide maintenance to the wife exists unless exceptions under Section 125 of the Cr.P.C. are proven. Grounds of cruelty, adultery, and desertion do not disentitle the wife f....
Point of law: Maintenance – Adultery - When piea of adultery is taken it is a serious defence of the respondent. If he failed to prove that particular aspect, then it amounts to character assassinati....
The burden of proof lies with the husband to establish continuous adultery to deny maintenance; isolated incidents are insufficient.
Important points:The reason that distinguishes is that, in case of a deserted and neglected wife, in cases of living in adultery, the lady would be maintained by the adulterer and need not have to wo....
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