The evidence must establish continuous indulgence in adultery to disentitle the wife from claiming maintenance under S.125 of the Cr.P.C.

K.A. Mohamed Shaft, J.

The 1st petitioner in M.C. No. 106/93 on the file of the Family Court, Kozhikode is the revision petitioner.

2. The revision petitioner along with her three children filed the M.C. before the Family Court claiming maintenance from the respondent under S.125 of the Cr.P.C. The Family Court after trial by order dated 16.2.1995 directed the respondent to pay maintenance to petitioners 2 to 4, children of the 1 st petitioner and the respondent at the rate of Rs. 200/- to petitioners 2 and 3 and at the rate of Rs. 150/- to the 4th petitioner per month from the date of the award and disallowed the claim for maintenance made by the 1st petitioner by accepting the contention of the respondent that the 1st respondent is not entitled to maintenance as she is living in adultery. This revision petition is filed by the 1st petitioner challenging the finding that she is not entitled to maintenance from the respondent.

3. The facts that the marriage between the revision petitioner and the respondent was in the year 1981, petitioners 2 to 4 in the M.C. were born in that wedlock and they were living happily till the date of 1992 are admitted. The petitioner has contended that subsequently the respondent began to ill-treat her and at last left her house asking her to get Rs. 25,000/- from her father and thereafter the respondent neglected to maintain the revision petitioner and the children.

4. But the respondent has contended that the revision petitioner has been living in adultery and on 7.8.1992 she was caught red-handed by him in a compromising position with a neighbour one Babu. According to him, every day he goes to his work in the morning and returns in the evening and on that day when he returned at about noon as he was not well, he found the revision petitioner and that Babu in a compromising position inside his house. He has also contended that hearing the hue and cry the neighbours gathered and R. Ws. 2 and 3 had also seen the revision petitioner and Babu naked and in such a compromising position. He further contended that on that day itself he left the revision petitioner in her house. Therefore, according to him, the revision petitioner is not entitled to any maintenance from him under S.125 of the Cr1.P.C. since she is living in adultery.

5. The lower court accepted the case of the respondent that the revision petitioner is living in adultery and negatived her claim for maintenance from the respondent.

6. The revision petitioner has contended that the allegation made by the respondent is a cock and bull story created by him with the help of his neighbours and friends in order to escape from his liability to pay maintenance to the revision petitioner and therefore, the lower Court is in manifest error in finding that she is not entitled to maintenance from the respondent. The counsel for the revision petitioner vehemently submitted that even if the case of the respondent that the revision petitioner has committed an act of adultery as alleged by him is accepted for the sake of arguments, that single act of adultery will not disentitle the revision petitioner from claiming maintenance from the respondent under S.125 of the Cr.P.C.

7. It is clear from the evidence of RW s.1 to 3 that apart from contending that the revision petitioner has committed an act of adultery and she was caught red-handed, the respondent has not adduced any evidence to establish that the revision petitioner was living in adultery. Sub-s.(4) of S.125 is an exception to S.125(1) of the Cr.P.C. which lays down that the wife is not entitled to receive any maintenance from her husband under S.125 if she is living in adultery. It has to be noted that the provisions of S.125(4) disentitle the wife from claiming maintenance from her husband if she is living in adultery and not if she has committed adultery.

8. The phrase 'living in adultery' used in S.488(4) of the Cr.P.C. 1898 which is akin to S.125(4) of the present Cr.P.C. has been consi