The burden of proof for alleging a spouse is living in adultery lies with the husband, who must demonstrate continuous conduct to deny maintenance under Section 125.

1. The applicant / husband questions the order of Family Court dated 05.10.2006 passed in Misc. Suit No.650/2005 granting maintenance under S.125(1) of the Code of Criminal Procedure (for short 'the Code - ) to non - applicant No.l / wife, by filing criminal revision under S.19(4) of the Family Court Act,1984.

2. The core facts necessary in order to understand the dispute and for eventual adjudication are as under: -
2.1 Non - applicant No.l - Meena Devi Netam along with her daughter (Non - applicant No.2) filed an application under S.125 of the Code pleading inter alia that she is the legally wedded wife of applicant and the non - applicant No. 2 is her daughter. It was further pleaded that the non - applicant No.l / wife is suffering from heart ailment and undergoing treatment at Dhamtari, and she has been forced to live separately on account of ill treatment extended by the applicant and, as such, they are unable to maintain themselves; and she has further pleaded that though the applicant has sufficient means to maintain them, even then he neglected them to maintain.
2.2 Resisting the claim of non - applicants, applicant / husband filed his counter admitting their marriage and the birth of female child (non - applicant No.2.) but pleaded that non - applicant No.1 has illicit relation with one Lakhan Lal and they were found in compromising position by their two sons and when she was asked to refrain from such relation, non - applicant No. 1 came to Bhilai Nagar along with non - applicant No. 2 and since then, she is residing at Bhilai Nagar with Lakhan Lal and, therefore, the non - applicants are not entitled for maintenance by virtue of Section sub-section (4) of S.125 of the Code.
2.3 The Family Court, after embarking on the pros & cons of the evidence fully, allowed the application holding that non - applicant No. l is entitled for maintenance of Rs.1,500/- per month and negatived the plea of the applicant / husband that no - applicant No.l 'is living in adultery' within the meaning of S.125 (4) of the Code. Against this order, instant revision has been filed by the applicant / husband impugning the legality and correctness.

3. Shri P. P. Sahu, learned counsel appearing for the applicant would submit that the finding recorded by the learned Principal Judge, Family Court, Raipur that the applicant has failed to establish that the non - applicant No.l / wife 'is living in adultery' is perverse. He would further submit that the applicant has clearly established the continuous adulterous conduct on the part of the non - applicant No.l / wife and, as such, the impugned order granting maintenance in teeth of continued adulterous, life deserves to be annulled in this revision.

4. Shri D. N. Prajapati, learned counsel appearing for the respondents would submit that there is no specific pleading made in the counter to allege that non - applicant No.l 'is living in adultery' within the meaning of S.125 of the Code; and furthermore. that the applicant has failed to establish continued adulterous conduct on her part so as to bring her conduct within the meaning of S.125(4) of the Code, which disentitles her statutory right of maintenance granted under S.125(1) of the Code.

5. I have heard learned counsel appearing for the parties and considered the rival submissions made therein including order impugned with utmost circumspection.

6. At this stage, it would be proper to notice under S.125 (1) of the Code, which read as under: -
"125. Order for maintenance of wives, children and parents. - (l)If any person having sufficient means neglects or refuses to maintain -
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not