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Judgements favoring men


Bench: JUSTICE D.G.R. Patnaik


Law Point:
The petitioner wife voluntarily left house of husband without reasonable cause or excuse and refused to live with him without just cause — No infirmity in findings recorded by Trial Court and Revisional Court — No ground to interfere with impugned orders.





1. The petitioner has prayed for quashing the order dated 7.7.2004 passed by the 1st Addl. Judicial Commissioner, Khunti ( Ranchi) in Criminal Revision No. 111 of 2000, whereby the revision application filed by the petitioner against the order dated 17.8.2000 passed by the learned ACJM, Khunti in Maintenance Case No. 6 of 1997 praying for maintenance was dismissed.

2. The facts of the case, in brief, is that the petitioner was married to the opposite party No. 2 and from their consortium, a son was born to the petitioner. The petitioner has alleged that subsequent to the birth of the child, the attitude and behaviour of her husband underwent a drastic change and he began subjecting her to ill treatment, neglect, cruelty and physical violence to her. She was ultimately expelled from her matrimonial house on 22.8.1996 and therefore she had resorted to criminal proceedings by way of a complaint being Complaint Case No. 58 of 1996 and having been totally neglected by her husband, the petitioner had filed an application before the ACJM, Khunti, for claiming maintenance from her husband under Section 125, Cr.P.C. The case was registered as M. Case No. 6 of 1997. The claim for maintenance as filed by the petitioner was contested by the opposite party No. 2 primarily on the ground that the petitioner had voluntarily left her matrimonial house after she had developed an illicit relation with one Jagannath Mahato @ Futchua with whom she was living in adultery. The opposite party had also claimed that he had filed a case at the Police Station against the said Jagannath Mahato for the offence of abduction which was registered Karra PS Case No. 46 of 1996 . It was also claimed by the opposite party No. 2 that the earlier Complaint Case No. 58 of 1996 in which the petitioner was charged for the offence under Section 498A of the Indian Penal Code had ended in acquittal of the opposite party No. 2 since the charge of cruelty and demand for dowry was not proved against him. It was further claimed that in the case filed by him for the offence under Section 366 of the Indian Penal Code, the police after investigation had submitted charge sheet pursuant to which cognizance of the offence was taken and the paramour of the petitioner was put on trial before the Court of Session in Sessions Trial No. 441 of 1997.
The learned Magistrate dismissed the petitioner’s claim for maintenance on the ground that though admittedly, the opposite party No. 2 was the husband of the petitioner, but the petitioner did not make out a reasonable ground for living separately from her husband and for claiming separate maintenance since it was proved by the evidence adduced by the opposite party No. 2 that the petitioner had left her husband’s house without any reasonable excuse and that she was living in adultery carrying on extra marital relation with another person. The order of the learned Magistrate was challenged by the petitioner in the revision preferred before the learned Sessions Judge, but the Revisional Court also dismissed her claim for maintenance on the same grounds and for the same reasons as assigned by the enquirying Magistrate.

3. Ms. Reshmi Pradhan, learned Counsel appearing on behalf of the petitioner has assailed the impugned order of the Additional Judicial Commissioner passed in the revision application and also the order of the enquirying Magistrate basically on the ground that both the Courts have committed grave error by failing to appreciate the evidence on record in proper perspective and by failing to offer adequate opportunity to the petitioner to adduce evidence on her behalf. Learned Counsel explains that admittedly, the petitioner is the legally married wife of the opposite party No. 2 and their marriage was consummated and a child was born to the petitioner after two years of the marriage. The petitioner was thereafter subjected to ill treatment, neglect and cruelty by her husband and was expelled by him from his house on false and frivolous allegation of adultery. Learned Counsel adds that the case for the offence under Section 366 of the Indian Penal Code, was a well planned move by the husband in connivance with some of his close associates within the village since he had himself developed an illicit relation with another lady and had wanted to get rid of the petitioner. Learned Counsel adds further that the very fact that on the one hand, the opposite party had levelled allegation of adultery against the petitioner, but on the other hand, he has also declared that he is prepared to keep the petitioner in his house with full honour and dignity, in itself would suggest that the allegation of adultery was false and that even otherwise, he had condoned the act of adultery. Learned Counsel adds further that admittedly the marriage between the petitioner and the opposite party No. 2 does subsist and therefore the petitioner is entitled to claim and receive maintenance from her husband.

4. As against this, learned Counsel for opposite party No. 2 wants to controvert the entire grounds of the petitioner and contends that the petitioner has not made out any ground for invoking the inherent jurisdiction of this Court under Section 482, Cr.P.C and further, that the claim of the petitioner for separate maintenance has been refused both by the Trial Court as well as by the Revisional Court. Learned Counsel explains that both the Courts below on the basis of the evidence adduced have recorded their findings that the petitioner has not offered any reasonable excuse for living separately from her husband and that the evidences do suggest that the petitioner had voluntarily left the house of her husband and had eloped with another person with whom she was carrying on extramarital relations.

5. In cases involving matrimonial disputes and in cases where a claim for maintenance is advanced by a deserted wife, it would not be proper to stick to hyper-technicalities and where the demand is for justice, inherent power of this Court can very well be invoked. Yet again, in cases in respect of grant of maintenance to a deserted wife, the High Court and Supreme Court have been liberal in their approach and a solitary instance of lapse in character of the wife should not be considered as a ground to absolve the husband from his liability to pay maintenance to his wife. However, the question which would still have to be determined in such cases is whether the wife had offered just and reasonable excuse for refusing to live with her husband.

6. Sub-section (4) of Section 125, Cr.P.C. lays down that no wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of the proceedings, 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.

7. In the instant case, opposite party No. 2 while contesting the claim for maintenance by the petitioner has taken a consistent ground that the wife has been living in adultery with another person whom he has named. In support of his claim, he has also produced evidence at the trial which includes, besides the evidence of the witnesses, certain documentary evidences relating to the case under Section 366, I.P.C. filed by him against the third person on the charge that the said person had abducted the petitioner. The ground of cruelty which the petitioner had earlier raised against her husband could not be proved in evidence at the trial in the criminal proceedings which she had instituted against her husband. From the evidence of the petitioner’s own father and the uncle at the trial in the maintenance case, it transpires that both the witnesses have acknowledged the fact that a Panchayat was held in the village in respect of the illicit relation between the petitioner and the other person and the Panchayat had imposed a fine upon that person as also upon the father of the other person. The Trial Court as also the Revisional Court on the basis of the evidences adduced by both the parties at the trial, had arrived at the finding that the petitioner was living in adultery and that she had not offered any reasonable ground or excuse for living separately from her husband.

8. The Trial Court having recorded the above findings has also observed that since the husband has been willing to condone the acts of the wife and is still prepared to keep her with him with full honour and dignity, the petitioner should have returned to her matrimonial house and restored conjugal relation with her husband. Thus, I find that both the Courts below have recorded the findings of fact and have assigned adequate grounds for such findings. The petitioner’s claim that she was not offered reasonable opportunity to adduce sufficient evidence, does not appear to be convincing. Both before the Trial Court as also before the Revisional Court, no claim was made by the petitioner that she had wanted to examine any further witness besides those already examined by her and neither does it appear that she made any offer before the learned Trial Court for examining any other witness and that such offer was refused by the learned Trial Court. The facts of the case suggest that it was not an isolated or solitary instance of lapse in character on the part of the wife. Rather, the findings of the learned Trial Court and the Revisional Court are that the petitioner voluntarily left the house of her husband without reasonable cause, or excuse and had thereafter refused to live with him without just cause. This being the findings of the fact by both the Courts below, and there being no infirmity in the findings recorded by the learned Trial Court and the Revisional Court, there appears no ground for interfering with the orders impugned in this case.

I find no merit in this application. This application is accordingly, dismissed at the stage of admission.

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