Court:GAUHATI HIGH COURT
Bench: JUSTICE B.B. Deb
SUBAL CHANDRA SAHA Vs. PRITIKANA SAHA On 17 February 2003
Section 125(4) — Maintenance : Adultery : Wife-respondent living together with another man in rented house as husband and wife till they were apprehended by police from that house : Their intention to continue in living with sex with each other cannot be brushed aside : It construed “living in adultery” within meaning of Section 125(4), Cr.P.C.
1. Heard Mr. P. Roy Barman, learned Counsel for the petitioner and Mr. A. Banerjee, learned Counsel for the respondent.
2. The husband-petitioner filed this criminal revision petition against the judgment dated 12.11.2002 passed by the learned Sessions Judge, West Tripura, Agartala in Criminal Revision No. 20(2)/2002.
3. The respondent-wife filed a petition seeking maintenance under Section 125 of the Cr.P.C. in Misc. Case No. 42/1999 before the learned Additional Chief Judicial Magistrate, West Tripura, Agartala. The learned Additional Chief Judicial Magistrate being the Trial Court after recording evidence, hearing the parties, disposed of the maintenance petition vide judgment dated 1.2.2002, whereby the learned Trial Court allowed a maintenance of Rs. 1,000/- per month to be paid by the husband, petitioner herein, for the maintenance of minor daughter Sumana Saha, while rejecting the prayer of maintenance of the wife, Smt. Pritikana Saha. The learned Trial Court, disallowed the petition on maintenance, so far the wife is concerned, on the ground of her “living in adultery” with another man. Being aggrieved, the wife preferred criminal revision petition before the learned Sessions Judge, West Tripura, Agartala in Criminal Revision No. 20(2)/2000. By the impugned judgment, the learned Sessions Judge allowed the revision directing the payment of maintenance of Rs. 1,000/- per month along with arrears by the husband, petitioner herein, in favour of the wife, respondent herein. Hence, this criminal revision filed by the husband.
4. The main crux of the case is that whether the learned Sessions Judge was correct in holding that the wife has not been “living in adultery” on the evidence and materials available on record. At the fag end of inquiry/trial the husband filed a petition on 17.8.2000 contending, inter alia, that the wife had been living in adultery with one Shri Sujit Majumdar and both the wife and said Shri Sujit Majumdar used to live in a rented house of one Shri Narayan Chandra Saha at Badharghat Kanchanpalli as husband and wife with effect from 28.6.2000 and on the allegation of husband both the wife and said Shri Sujit Majumdar were arrested by a Police Officer from that house on 6.7.2000 on the strength of G.D. Entry No. 382/387, dated 6.7.2000. The wife was allowed to file written objection and she denied the said allegation.
5. Shri Sudip Saha was examined as O.P.W. 2. From his deposition it reveals that on 28.6.2000 wife Pritikana Saha and one Shri Sujit Majumdar went to the house of O.P.W. 2 at Kanchanpalli and one Shri Prantosh Saha also accompanied them. On request, one house was rented in favour of Shri Sujit Majumdar and Smt. Pritikana Saha. Shri Prantosh Saha, who was pre-acquainted with Shri Sujit Majumdar intimated the said witness, Shri Sudip Saha, that Smt. Pritikana Saha and Shri Sujit Majumdar were newly married couple. Both Smt. Pritikana and Shri Sujit Majumdar stayed in the rented house as husband and wife together with effect from 28.6.2000 to 6.7.2000. On 6.7.2000 the police raided the house and arrested Smt. Pritikana Saha and Shri Sujit Majumdar. The Police Officer, Shri Sadhan Choudhury was examined as O.P.W. 5. He deposed that he arrested Smt. Pritikana Saha and Shri Sujit Majumdar under Section 41 of Cr.P.C. from the house of Shri Narayan Chandra Saha of Kanchanpalli, South Badharghat. He further deposed that neither Smt. Pritikana Sahu nor Shri Sujit Majumdar could furnish any satisfactory explanation regarding their stay together in the house of Shri Narayan Chandra Saha (landlord).
6. Relying upon the deposition of those witnesses the learned Trial Court has held that the wife. Smt. Pritikana Saha has been “living in adultery” with Shri Sujit Majumdar and on that ground refused to grant maintenance in favour of the wife. Smt. Pritikana Saha. The learned Sessions Judge held that only on the fact of Smt. Pritikana Saha and Shri Sujit Majumdar being arrested from the house of Shri Narayan Chandra Saha it cannot be held that the wife Smt. Pritikana Saha has been living in adultery.
7. Mr. P. Roy Barman, learned Counsel appearing for the petitioner submits that from the deposition of Shri Sudip Saha, the son of the landlord, it transpired that the wife, Smt. Pritikana Saha and her paramour, Shri Sujit Majumdar had been continuously living as husband and wife in the rented house belonging to the father of the O.P.W. 2, Shri Sudip Saha. They took rent of the house on 28.6.2000 and they were continuously living together in the said house as husband and wife till they were arrested by the police on 6.7.2000.
8. The learned Counsel, Mr. A. Banerjee, appearing for the wife-respondent placed reliance on the following decisions :
(i) Baishnab Charan Jena v. Ritarani Jena, reported in 1993 Cr.LJ 238 (Ori.), and
(ii) Pandurang Barku Nathe v. Leela Pandurang Nathe, reported in 1997 Cr.LJ 3976 (Bom.).
Mr. Banerjee, learned Counsel developed his argument contending that casual living of a wife for some occasions with another man cannot be construed to be “living in adultery” within the meaning of Section 125(4) of the Cr.P.C., unless the wife has been living in adultery with another man for a considerable length of time, the said living together cannot legally be construed as “living in adultery” under Section 125(4) of the Cr.P.C. On the other hand, Mr. Roy Barman, learned Counsel for the petitioner submits that continuity in living in adultery is the factor to be considered. He frankly concedes that stray living or casual living with another man can be ignored having regard to the facts and circumstances of a particular case from the applicability of the legal term “living in adultery” within the meaning of Section 125(4) of the Cr.P.C. According to Mr. Roy Barman, learned Counsel for the petitioner, in the present case the wife-respondent had been living together with another man in a rented house as husband and wife since 28.6.2000 till they were apprehended by the Police from that house on 6.7.2000 and as such the wife undoubtedly started living with her paramour in a rented house as husband and wife and unless the police apprehended them they would have living together in the said rented house or elsewhere as husband and wife having continuity.
9. After careful perusal of the citations referred to above it appears that casual living with a person other than husband with sexual relation would not construe “living in adultery” under Section 125(4) of the Cr.P.C. There must be continuity of living in adultery to satisfy the ingredients of Section 125(4) of the Cr.P.C. In the present case, from the deposition of son of the landlord coupled with the admitted fact of their arrest from the rented house, it can safely be presumed that with a definite intention of living together as husband and wife they started living in the rented house together. Unless they were arrested their intention to continue in living with sex each other cannot be brushed aside and in those given circumstances in my considered opinion it construed “living in adultery” within the meaning of Section 125(4) of the Cr.P.C. The living together with another man by the wife in the present case appears to be not a stray incident nor a casual one, but having intention of continuing living with another man as husband and wife, they took rent of the house where they in fact started living together as husband and wife.
10. In that background of the case, the citations relied upon by Mr. A. Banerjee, learned Counsel for the respondent appears to be of no help. The learned Sessions Judge failed to appreciate the evidence of O.P.W. 2, the son of the landlord and the police personnel O.P.W. 5. There is no convincing evidence led by the wife to disbelieve the proved fact of living together continuously since 28.6.2000 till the date of their arrest on 6.7.2000 as husband and wife and as such in my considered opinion the ingredients required under Section 125(4) of the Cr.P.C. are fulfilled and it can be safely held that the wife started living together with another man as husband and wife with a definite intention to continue the same and in fact they continued living in adultery from 28.6.2000 till they were arrested on 6.7.2000.
11. Under the aforesaid circumstances I am left with no other alternative, but to allow the revision petition. The impugned judgment dated 12.11.2002 of the learned Sessions Judge granted maintenance in favour of the wife-respondent herein, is hereby set aside.
12. With the above observation and decision, this revision petition is allowed with no order as to costs.