KERALA HIGH COURT
K. Ramakrishnan, J.
Sheela & Anr. —Petitioners
versus
Albert Hemson alias James —Respondent
R.P. (FC) No.323 of 2014
Decided on 7.1.2015

IMPORTANT POINTS
(1) In the maintenance petition Court must be slow in questioning the chastity of woman unless there is strong circumstance available to come to such a conclusion.
(2) As regards the female children are concerned, they are entitled to get maintenance till their marriage unless it is proved that she is having independent income to maintain herself after she attained majority.

Headnote:(i) Criminal Procedure Code, 1973—Section 125—Maintenance petition by wife—Trial Court dismissed petition on ground that petitioner was leading an adulterous life—Revision—Standard of proof necessary in matrimonial causes—Expression “is living in adultery” would mean a continuous course of adulterous life as distinguished from one or two lapses from virtue—Mere strong or single lapse is not sufficient to constitute living in adultery—RW 2, brother of husband, claimed to have seen petitioner travelling together in a care with alleged adulterer, an advocate was not sufficient to conclude that petitioner was living in adultery—Petitioner was entitled to maintenance.

       Held: RW1 is the husband of the first petitioner and he had no direct knowledge about the allegation of adultery or the illicit relationship between PW1 the first petitioner and the said Ajith Krishnan. He is only relying on the hearsay knowledge of instances given by his brother RW2 on this aspect. Even according to the evidence of RW2, he had only seen PW1 going along with Ajith Krishnan in a car along with PW3 and at that time he along with others obstructed the same and took some photos and objected their going together. He had no case that he had seen them in any suspicious circumstances. It was also brought out in evidence that the petitioner had filed a complaint against him for assaulting her and he is not in good terms with the first petitioner. So, his evidence is also not sufficient to come to the conclusion that the relationship even admitted between first petitioner and the said Ajith Krishnan will be sufficient to lead to a conclusion that they are living in adultery. The evidence of RW6 is also not sufficient to come to such a conclusion as he had no direct knowledge about the alleged incident in which people had stopped the car in which PW1 was travelling along with the said Ajith Krishnan on a particular day and he had knowledge about that incident as spoken to by RW2 who is his friend. PW3 was examined on the side of the first petitioner to prove the circumstances under which they happened to travel together in the car with Ajith Krishnan. She had stated that she along with PW1 went in the car of Ajith Krishnan to get a stamp paper for the purpose of submitting an application for scholarship for their children who were studying in the same school. Except that incident, there is no concrete evidence adduced on the side of the respondents to prove that their relationship is in the nature of living in adultery. Even assuming that they were travelling together in a car or they were meeting frequently alone is not sufficient to come to a conclusion that they were living in adultery as contemplated under Section 125(4) of the Code of Criminal Procedure to deny maintenance to her.

       Further, court must be slow in questioning the chastity of woman unless there is strong circumstance available to come to such a conclusion. Mere suspicion alone is not sufficient to come to the conclusion that she is living in adulterous life. Here even assuming that the entire allegations were accepted, it will not lead to an inference that they were living in adultery so as to give an impression that the alleged adulterous conduct of first petitioner was of permanent nature and they are leading an immoral life so as to bring their relationship in the nature of an adultery a matrimonial offence so as to deny maintenance to the first revision petitioner. Further, the evidence of PW1 and PW2 will go to show that there is some family relationship between PW1 and said Ajith Krishnan and it was he who helped them in filing the complaint against RW2 and for filing this application for maintenance etc. Further, no steps taken by the respondent to dissolve the marriage with PW1 on the ground of adultery as well. So, under the circumstances, court below was not justified in relying on the evidence of RWs 2 and 6 to come to the conclusion that she is living in adultery and the adulterous life of PW1 with the said Ajith Krishnan was proved by preponderance of probabilities so as to deny her the maintenance under Section 125 of the Code of Criminal Procedure. So, the finding of the court below on this aspect is liable to be set aside as it is perverse and against the decision of courts on this aspect and respondent is liable to pay maintenance to her. (Paras 16 & 17)

       (ii) Criminal Procedure Code, 1973—Section 125— Maintenance petition—Applicant was daughter of respondent and became major during pendency of petition—Trial Court declined maintenance on ground that she became major and no claim for maintenance was filed separately by filing separate vakalath—Whether trial court view was correct? No.

       Held: As regards the second petitioner is concerned, the observation made by the court below that she did not pursue her claim for maintenance after she became major appears to be not correct, because, she filed the vakalath after she attained majority and that was overlooked by the court below. Further, it is settled law that as regards the female children are concerned, they are entitled to get maintenance till their marriage unless it is proved that she is having independent income to maintain herself after she attained majority. No such evidence was adduced in this case. She had pursued her claim for maintenance by filing this revision also. So, under the circumstances, the finding of the court below that she did not pursue her claim for maintenance and as such she is not entitled to get maintenance is also not correct. (Para 19)

       Result: Revision allowed.