29. The allegation of elopement though tends to colour it with leading life in adultery but there is no evidence and the respondent in his representation admitted that the episode of elopement is based on hearsay and as such, it has to be held that there is no evidence against the petitioner for living in adultery. Therefore, the provisions of Section 125 (4), Cr.P.C. cannot disentitle the petitioner from getting the maintenance in the circumstances.
2012 CRI.L.J.3743 (GAUHATI HIGH COURT ) Smt. Prembala Das V. Laxmi Charan Das. Cri. Revn. P.No.30 of 2009 D/- 6.6.2012. (A) Criminal P.C. (2 of 1974), S. 125 Maintenance --Entitlement --Husband contracted second marriage during subsistence of first marriage due to which wife left matrimonial house--After nineteen years of leaving matrimonial home, she filed application for maintenance as she was not able to maintain herself due to old age, ailments and no income--Husband's plea that wife had eloped with another man was discarded as it was based on 'hearsay'--Not claiming maintenance cannot be ground for disentitlement of maintenance to legally married wife. Wife could not be expected to live in matrimonial home as husband was living with lady who had not legal status as wife. Two sons of couple, who were not impleaded as parties, could not be made liable for compensation. Husband's business was being managed by two sons and thus he cannot absolve himself from payment of maintenance to his legally married wife. Wife held entitled to monthly maintenance along with lump sum amount of arrears of maintenance from husband
(B) Criminal P.C.(2 of 1974), S.125 (4)--Maintenance. Disentitlement to wife living in adultery--Object of S.125 is to save legally married wife and other persons from vagrancy and destitution. Husband's plea that wife eloped with another man was hearsay and as such there is not evidence of adultery. Even lapse in claiming maintenance by wife having colours of adultery cannot be pressed to disentitle her from getting maintenance. S.125 (4) cannot be liberally used to disentitle wife from getting maintenance.
26. On careful consideration of the rival contentions this Court is of the view that there is no controversy that the claim of maintenance has been preferred after 19 years from when the petitioner left the matrimonial home. Her contention is very simple that since the respondent contracted the second marriage, she left the matrimonial home. That was even supported by her daughter, who was at the relevant point of time aged about 11-12years. P.W.2 only stated that her father contracted the second marriage. The respondent's plea that the petitioner eloped with one person 19 years back cannot be accepted. On the contrary, such aspersion is admittedly based on "hearsay". A Court of law cannot determine any issue on the basis of "hearsay" and as such, the plea of elopement of the petitioner has to be discarded.
27. The learned Judge, Family Court committed a serious mistake by holding that the petitioner eloped with one person whereas the respondent in his representation to Tripura Commission for Women has categorically stated that from "hearsay" he learnt that the petitioner eloped with one person to Kashmir. For not claiming maintenance for long 19 years cannot by itself be a ground for disentitlement of maintenance to any legally married wife.
29. The allegation of elopement though tends to colour it with leading life in adultery but there is no evidence and the respondent in his representation admitted that the episode of elopement is based on hearsay and as such, it has to be held that there is no evidence against the petitioner for living in adultery. Therefore, the provisions of Section 125 (4), Cr.P.C. cannot disentitle the petitioner from getting the maintenance in the circumstances.
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