CRL RC/459/2001 of V.PONNUSWAMY AGE 49 Vs TMT.JAYA MARY AGE 45 on 31 December 2002

:ORDER

Aggrieved by the order of the Judicial Magistrate II, Poonamalleedated 29.3.1995 made in M.C.No.1 of 1992, the petitioner-husband has preferredthe above revision. The respondents herein filed M.C.No.1 of 1992 claimingmaintenance at the rate of Rs /= per month against the petitioner herein undersec.125 of the Cr.P.C. before the Judicial Magistrate II, Poonamallee.According to the respondents herein-the petitioners therein, the petitionerand the first respondent herein got married on 1.7.1974 at Vasudevanallur,Tirunelveli District and after the marriage, they were living at No.114, ButtRoas, St.Thomas Mount, Madras. Two children viz., respondents 2 and 3 hereinwere born to them. In the petition before the court below, the firstresponden t-wife has alleged that due to family circumstance and in order tolead a wayward life, her husband deserted them. She has further stated thatthey are unable to maintain themselves. On the other hand, her husband isemployed in Hindustan Teleprinters Limited and earning Rs.4000/= per monthapart from having a house property at St.Thomas Mount. The said petition wasresisted by the husband by filing counter statement. He has stated that itwas the wife-first respondent herein who left his company. He also allegedthat she is leading an adulterous life and legally she is not entitled to anymaintenance.

2. Before the court below, two witnesses were examined on the side ofthe petitioners therein and no document was marked. On the other hand, on thethe petitioners therein and no document was marked. On the other hand, on the side of the husband, himself was examined as RW1 and he examined fourwitnesses as R.W.s 2 to 5 and ed Exs.R1 to R17 in support of his defence. Thelearned Judicial Magistrate, after holding that there was valid marriagebetween the petitioner and the first respondent herein and two children(respondents 2 and 3 herein) were born to them, the wife is justified inliving separately and unable to maintain herself, passed an order grantingmaintenance at the rate of Rs.300/= per month in favour of the wife and thedaughter and Rs.400/= per month in favour of the son. Questioning the saidorder in so fa r as it relates to payment of maintenance in favour of thefirst respondent-wife, the petitioner has preferred the above revision.3. Though notice was served on all the respondents, they have notchosen to engage a counsel to contest the matter.

4. Point for consideration in this revision is whether the court below is justified in granting maintenance in favour of the firstrespondent-wife and whether the petitioner-husband has established the factthat his wife is leading adulterous life. e the petitioner is not questioningthe order granting maintenance in favour of respondents 2 and 3, it is notnecessary for me to consider the same. Let me consider whether the wife-firstrespondent herein is entitled to maintenance as ordered by the c ourt below.5. In order to consider the said question, it is useful to refer tosub-section 4 of section 125 Cr.P.C., which reads as follows:- "(4) No wife shall be entitled to receive an allowance from her husband underthis section if she is living in adultery, or if, without any sufficientreason, she refuses to live with her husband, or if they are living separatelyby mutual consent."

As per the above provision, if it is established that wife is living inadultery, she is not entitled to receive an allowance from her husband by wayof maintenance. Since the plea viz., the wife is living in adultery has beenraised by the husband, it is for him to prove the same. In the counterstatement, the husband has specifically averred that in the year 1988, aftertaking leave from his office, he visited his house at St.Thomas Mount around3.30 p.m., and at that time, he noticed a scooter beari ng registration No.TMS1632 belonging to one Thiruchelvan was parked in front of his house and thedoor was locked. After noticing the scooter of Thiruchelvan, he suspected theconduct of his wife and by applying force, he opened the door and found thatthe said Thiruchelvan and his wife were lying in bed in a compromisingposition. It is further averred that on seeing him, Thiruchelvan sped awayfrom the scene of occurrence. The same has been reiterated before the courtby the husband as RW1. While considering the evidence of RW1, particularlywith regard to the said incident, the learned Trial Judge, after holding thatthere is no other independent witness for the said occurrence, disbelieved hisversion.

6. In a matter like this, the court cannot expect more witness to speak about the occurrence. I have already referred to specific assertion inthe counter statement and categorical statement of RW1 before the court.Merely because, no one has rais larm or no hue and cry, the statement of RW1cannot be rejected as without any basis. It is also seen that with referenceto such incident, the husband has made a complaint to the police and also toSC/ST association. It is evident from Exs.R6 to R10. This fact has beenaccepted by the learned Magistrate. The other three witnesses viz., R.W.s 2to 5 have also referred to the conduct of the wife, more particularly, the fact that she was having a jolly ride in a scooter along with Thiruchelvan.R.W.s 2 to 5, after noticing their company and relationship, informed RW1.Though PW1 has denied such fact, after going through the entire materials,particularly, the specific plea raised in the counter statement and theevidence of R.W.s 1 to 5 and the doc uments produced on the side of thehusband, I am of the view that the husband has established his claim that thewife is leading an adulterous life. I am also satisfied that the husband hasplaced acceptable oral and documentary evidence to show that hi s wife ishaving illicit intimacy with one Thiruchelvan and is living in adultery. Thereason giving by the learned Judicial Magistrate for dicarding the oral anddocumentary evidence let in on the side of the husband cannot be accepted.The learned Mag istrate has committed error in disbelieving the version of RW1in the light of his specific assertion in the counter statement coupled withthe evidence of R.W.s 2 to 5 and Exs.R6 to R10. In the light of the fact thatthere is ample evidence to show that the wife was living in adultery and inview of sub-section 4 of section 125 Cr.P.C., she is not entitled to anallowance from her husband. I have already referred to the fact that thepetitioner-husband is not questioning the grant of maintenance in fa vour ofthe children.

In the light of what is stated above, the order passed by the JudicialMagistrate II, Poonamallee dated 29.3.1995 granting maintenance in favour ofthe wife-first respondent herein at the rate of rs.300/= per month is setaside and in other respects e order is confirmed. The criminal revision caseis allowed. The connected Crl.M.P is closed.

Index: Yes.Internet: Yes.Ssk.P.SATHASIVAM,J.