# Plaintiff/Revisionist v. Ram Lakhan /Defendant

- **Citation:** (2008) 1 ILRA 179
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-11-15
- **Case number:** Criminal Revision No. 1954 of 2003
- **Bench:** Mrs.) Saroj Bala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/plaintiff-revisionist-v-ram-lakhan-defendant-40971
- **Pages:** 5

## Headnote

Code of Criminal Procedure- Section125(4)-Maintenance-wife
living
adultery at the time of filing applicationnot proved-finding recorded by the
Family Court-regarding birth of child out
of adulterous relationship-baseless-can
not sustain-revisionist/wife entitled for
maintenance.

Held: Para 7
The statement of the opposite party was
silent on the point that his wife was
living in adultery on the date the
application was made. In view of these
facts the conclusion drawn by the
Principle Judge Family Court that the
revisionist is living in adultery and child
was
the
outcome
of
adulterous
relationship cannot be sustained.
Case law discussed:
1985 Crl.L.J. 1923 (All), 1990 DMC 533, 1990
(1) DMC 38 (All), 1991 (2) DMC 422 (M.P.),
1993 Crl. L.J. 238, 1996 (2) Mah.L.J. 341

## Text

1 All] Pratibha Devi V. Addl. Commissioner and others
179
any of the exceptions, in which this Court
exercises its jurisdiction under Article 226
of the Constitution of India against an
order arising out of mutation proceedings.
The mutation courts have decided in
summary proceedings as to whose name
be recorded in the revenue record on the
basis of Will. The decisions of the
mutation court impugned in the writ
petition are subject to adjudication of
right of the parties by a competent Court.
It is well settled that findings recorded in
the mutation proceedings are neither
conclusive nor binding when the rights
are adjudicated in a competent Court. In
view of the foregoing discussions, no
around has been made to entertain this
writ petition arising out of mutation
proceedings in writ jurisdiction of this
Court.

18. Subject to observation as made
above, the writ petition is dismissed.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.11.2007

BEFORE
THE HON'BLE (MRS.) SAROJ BALA, J.

Criminal Revision No. 1954 of 2003

Raj Dei

...Plaintiff/Revisionist
Versus
Ram Lakhan ...Opposite Party/Defendant

Counsel for the Revisionist:
Sri Dr. Pradeep Kumar Misra

Counsel for the Opposite Party:
Sri R.P. Singh
A.G.A.

Code of Criminal Procedure- Section125(4)-Maintenance-wife
living
adultery at the time of filing applicationnot proved-finding recorded by the
Family Court-regarding birth of child out
of adulterous relationship-baseless-can
not sustain-revisionist/wife entitled for
maintenance.

Held: Para 7
The statement of the opposite party was
silent on the point that his wife was
living in adultery on the date the
application was made. In view of these
facts the conclusion drawn by the
Principle Judge Family Court that the
revisionist is living in adultery and child
was
the
outcome
of
adulterous
relationship cannot be sustained.
Case law discussed:
1985 Crl.L.J. 1923 (All), 1990 DMC 533, 1990
(1) DMC 38 (All), 1991 (2) DMC 422 (M.P.),
1993 Crl. L.J. 238, 1996 (2) Mah.L.J. 341

(Delivered by Hon'ble (Mrs.) Saroj Bala, J.)

1. This criminal revision is directed
against the judgment and order dated
24.4.2003 passed by the Principal Judge
Family Court Azamgarh in case crime no.
23 of 1995 Smt. Raj Dei and another Vs.
Ram Lakhan whereby declining to grant
maintenance under the provisions of
section 125 of the Code of Criminal
Procedure (hereinafter referred to as the
'Code').

The facts giving rise to this revision
are these:

2. The revisionist was married to the
opposite party about 25-26 years before
the presentation of maintenance petition.
The Gona ceremony took place 5-6 years
after the marriage. It was alleged that a
son was born to her few years after the
Gona ceremony out of the wedlock of
opposite
party.
According
to
the
revisionist there was change in the
behaviour of opposite party and he started
180 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
subjecting her to assault and abuses. The
opposite party was serving in the Army
and used to come home on leave. The
revisionist some how managed her stay in
the marital home bearing all sorts of
cruelties.
Two
years
before
the
presentation of maintenance petition the
opposite party brutally assaulted her and
turned her out of the marital home. He
threatened to kill her if she came back to
his house. She came to her parental home.
Her brother and respectable members of
the locality tried to reason with the
opposite party but he refused to keep her
with him. The opposite party did not
provide maintenance to her though he was
a man of means. The opposite party was
drawing more than Rs.2000/- per month
as
pension
and
had
income
from
agricultural land and tractor.

3. The opposite party contested the
petition by filing written statement. He
admitted having married the revisionist in
the year 1954. According to him Gona
ceremony took place in the year 1966. It
was alleged that due to Indo-Pakistan war
in the year 1971 he did not get leave to
visit his native place. In January 1972 he
came home on leave and joined his duty
in February 1972. The revisionist went to
her parental home thereafter and gave
birth to a male child in January 1973.
According to him he was not the father of
the child. The opposite party alleged the
revisionist having given birth to an
illegitimate
child
he
deserted
her.
According to him the revisionist did not
stay at his house thereafter. It was alleged
that the revisionist being employed in the
Health
Department
was
capable
of
maintaining herself.

4. The court below after taking into
account the evidence adduced by the
parties recorded the finding that the
opposite party was not the father of the
child of revisionist. The court below
declined the grant of maintenance on the
ground of her adulterous relationship with
another man.

5. The impugned judgment and
order has been assailed on the grounds
that it is the responsibility of the husband
to maintain his wife and the wife is
entitled to claim maintenance so long she
stays away from the matrimonial home
under the compelling circumstances. The
learned court below erred in recording the
finding that the revisionist failed to
establish sufficient cause for staying away
from the marital home. The court below
while
assessing
the
testimony
of
revisionist ignored the aspect that she is
an illiterate and rustic woman. The court
was much impressed by the fact that
opposite party was living the life of a
widower or bachelor having not entered
into a second marriage. According to the
revisionist there is no material on the
record to establish that the child born to
her was an illegitimate child. The court
below committed illegality in construing
the provisions of section 125 of the code.

6. Heard Shri P.K. Mishra, learned
counsel for the revisionist, Shri R.P.
Singh learned counsel for the opposite
party, learned A.G.A and have perused
the record.

7. The learned counsel for the
revisionist submitted that the provisions
of section 125 (4) of the Code disentitle a
wife to receive allowance for maintenance
if she is living in adultery or if without
any sufficient reason she refuses to live
with her husband. It was urged that the
burden of proving the child's parentage
1 All] Raj Dei V. Ram Lakhan
181
was upon the opposite party which he
miserably failed to discharge. The
opposite party did not resort to D.N.A.
test to establish the identity of the parent
of child born to the revisionist. The
learned counsel further argued that there
is sufficient material on the record for
coming to the conclusion that the opposite
party was the father of the child. The next
submission was that the opposite party
having sufficient means to provide
maintenance to the wife neglected and
refused to maintain her.

8. The learned counsel for the
opposite party strenuously canvassed that
the revisionial court should not interfere
with the finding of fact recorded by the
court below. There is sufficient evidence
to come to the conclusion that opposite
party was not the father of the child born
to the revisionist. The revisionist was
living in adultery therefore she was not
entitled to claim maintenance from her
husband.

9. It is well settled that section 125
of the Code has been enacted for
providing speedy relief to deserted wife,
children and parents. The precondition,
for the grant of maintenance under section
125 of the Code are that the applicant
must be a wife and unable to maintain
herself and her husband having sufficient
means neglects or refuses to maintain her.
It is not disputed that the revisionist is
legally wedded wife of the opposite party
and she is residing at her parental home.

Admittedly the opposite party is a
retired Army personnel and is getting
pension. The maintenance has been
refused to the revisionist on the ground
that she has incurred the disability
contained in sub-section (4) of Section
125 of the Code Section 125 (4) of the
Code reads as below:

"No wife shall be entitled to receive
an allowance for maintenance or interim
maintenance and expenses of proceeding,
as the case may be, from her husband
under this section if she is living in
adultery, or if, without any sufficient
reason, she refuses to live with her
husband, or if they are living separately
by mutual consent."

10. In the first part of sub-section (4)
of Section 125 of the Code the expression
'if she is living in adultery' has been used
which
means continuous course of
adulterous conduct. An occasional lapse is
not enough for refusing maintenance. The
adulterous conduct on the part of the wife
is to be seen at the time of presentation of
application. Moreover there has to be
clear proof of adultery. It is true that
direct evidence of adultery is not available
but there has to be some evidence to
prove the allegations.

11. In Udaivir Singh V. Smt. Vinod
Kumari, (1985) Cri. LJ 1923(All.), wife
was living separately from husband and
chastity of wife was doubted by husband.
The High Court held that the wife was
justified in living separately from husband
and claiming maintenance.

12. In Chhagan Lal Devman V.
State of Maharashtra (1990) 1 DMC 533,
this Court has held that the expressing
"living in adultery" as used in Section 125
Cr.P.C. is to mean a continuous course of
adulterous life as distinguished from one
or two lapses from virtule and the burden
to prove allegations of adultery against
the wife lives on the-husband.
182 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
13. In Khem Chand V. State (1990)1
DMC 38 (All) it has been held that the
cardinal principle is that in matrimonial or
maintenance cases solitary evidence of
spouse attributing unchastity or adultery
to the other party, should not be relied on
because
such
spouse
is
extremely
interested in the case.

14. In Ravindra Singh V. Kapsi Bai,
(1991) 2 DMC 422(Madh Pra) it has been
down that if for the husband to prove that
the wife is continuously committing
violation of the marriage bed indulging in
adulterous life, i.e. living in, quasi
permanent union with another. It has been
further observed that to establish this,
more than one instance of adultery has to
be brought home to the knowledge of the
wife, thereby constituting the term "living
in adultery" within the meaning of subsection (4) of Section 125 Criminal
Procedure Code. In this case, it was found
that considering the evidence in totality,
barring the two instances of which
husband had condoned one and except the
second one which then took place or
isolated act of adultery, there was no other
evidence to infer that wife was living in
adultery.

15. In Baishnab Charan Jena V.
Ritarant Jena 1993 Cri. Ll 238 (Orissa) it
has been laid down that merely proving
one or more instances of lapses in
character of wife is not sufficient to
absolve her husband from liability to pay
maintenance to her and even assuming
that the instances alleged by the husband
are held to have been established, still he
will not be entitled to succeed to deny his
liability for payment of maintenance. It
was further pointed out that the very
allegation by the husband to castigate the
wife as a person living in adultery entitles
her to live separately from her husband
and claim maintenance from him.

16. In Chandrakant Gangaram
Gawade
V.
Sulochana
Chandrakant
Gawade(1996) 2 Mah. Ll 341 it was held
that it is for the husband to prove that
wife is living in adultery and a mere stray
or single lapse on the part of the wife is
not sufficient to bring her conduct within
the meaning of the expression "living in
adultery" as used in Section 125(4)
Cr.P.C. and that it should be a continuous
course of adulterous conduct. It was
further held out that the husband cannot
get over his liability to pay maintenance
merely by proving one or more instances
or lapses on the part of the wife and he
will have to produce additional evidence
to
establish
continuous
course
of
adulterous behaviour of wife.

In Narnath Thazhakuniyil Sandha V.
Kottayat Thazhakuniyil Narayan 1999
Cri. LJ 1663 the wife was actually found
indulging in sexual intercourse with
another person on one occasion and it was
held that the words "living in adultery"
under

Section
125(4)
Cr.P.C.
contemplate continuous course of conduct
on the of wife with paramour and it would
be improper to refuse maintenance to wife
on the evidence adduced by husband
showing only a single act of unchastely or
few lapses from virtue on the part of wife.

17. The provisions of sub-section (4)
of section 125 of the Code being an
exception to the general rule that the
maintenance is to be provided by the
husband to the wife unable to maintain
herself, the burden of proof that the wife
is living in adultery is on the husband who
claims protection of the exception,
contained in section 125(4) of the Code.
1 All] Raj Dei V. Ram Lakhan
183
In the instant case the opposite party
examined himself as O.P.W. -1 and
deposed that he came home on leave in
January 1972 and went away to join his
duty in February 1972 and child was born
to the revisionist in January 1973 though
he had no physical relationship with her
after February 1972. In the Parivar
Register maintained by Gram Panchyat
the date of birth of the child has been
mentioned as 9.9.1972. The opposite
party did not apply for D.N.A. test of
blood samples of the child with his blood
samples to establish the identity of the
father of the child. The D.N .A. test is
recognized under the Indian Evidence Act
as proof of paternity of the child. There is
no documentary proof that the child was
born in January 1973. On the contrary, the
entries of Parivar Register indicate the
birth of the child on 9.9.72. The opposite
party did not examine any witness to
establish the adulterous relationship of
revisionist with a particular person. The
deposition of opposite party was not
sufficient for coming to the conclusion
that
the
revisionist
had
adulterous
relationship and child born to her was the
result of said relationship. Moreover the
child was born in the year 1972 or 1973.
The petition for maintenance was filed in
the year 1995. The statement of the
opposite party was silent on the point that
his wife was living in adultery on the date
the application was made. In view of
these facts the conclusion drawn by the
Principle Judge Family Court that the
revisionist is living in adultery and child
was
the
outcome
of
adulterous
relationship cannot be sustained.

18. Coming to the question whether
the revisionist has established that her
husband
neglected
and
refused
to
maintain her. The opposite party deposed
that, he will not allow his wife and her
son to live in his house. He admitted that
his wife is an illiterate woman and she is
residing at her parental home since the
birth of the child. According to him he is
drawing pension of Rs.2400/- per month.
The opposite party did not provide
maintenance to his wife and refused to
maintain her. The revisionist asserted that
she was assaulted, turned out of marital
home by the opposite party and threatened
not to come again. She gave out that she
has no means to maintain herself whereas
the opposite party is drawing pension and
had income from agricultural land. There
is no reason to discard the sworn
testimony of the revisionist that opposite
party neglected and refused to maintain
her. The opposite party is a man of means
having sufficient income to provide
maintenance to the revisionist. In view of
these
facts
and
circumstances
the
revisionist is entitled to get maintenance
allowance @ Rs.500/- per month from the
opposite party from the date of the
revision i.e. 25.7.2003.

19. A propose to what has been
discussed above the revision is allowed.
The impugned order dated 24.4.2003 is
set aside. Allowing the application moved
under
section
125
of
the
Code
maintenance allowance @ Rs.500/- per
month is awarded to the revisionist from
the opposite party from the date of this
revision.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.01.2008

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ petition No. 63027 of 2007