observation made by the court below that she did not pursue
her claim for maintenance after she became major appears to
be not correct, because, she filed the vakalath after she attained
majority and that was overlooked by the court below. Further,
it is settled law that as regards the female children are
concerned, they are entitled to get maintenance till their
marriage unless it is proved that she is having independent
income to maintain herself after she attained majority. No such
evidence was adduced in this case. She had pursued her claim
for maintenance by filing this revision also. So, under the
circumstances, the finding of the court below that she did not
pursue her claim for maintenance and as such she is not entitled
to get maintenance is also not correct. So, the petitioners are
entitled to get the maintenance from the respondent and he is
liable to pay maintenance to them as well.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE K.RAMAKRISHNAN
7TH DAY OF JANUARY 2015
R.P.(F.C.)No. 323 of 2014 ()
SHEELA, Vs ALBERT HEMSON @ JAMES, A
Citation;2015(3) Crimes 697 Kerala
Petitioners in M.C.No.334/2008 of Family Court,
Ernakulam are the revision petitioners herein. The application
was filed by the revision petitioners who are the wife and
daughter of the respondent claiming maintenance under
Section 125 of the Code of Criminal Procedure.
2. The case of the petitioners in the petition was that
they belong to Christian community and first petitioner married
the respondent on 03.01.1995 as per custom from Palayam
St.Joseph Cathedral Church, Thiruvananthapuram and in that
wedlock, the second petitioner was born on 16.10.1995. At
the time of marriage, she was given 65 sovereigns of gold
ornaments and Rs.5,00,000/- cash by her parents. At the time
of marriage, respondent was working in Gulf in a Kuwait
Company and he was working even now there. At the time of
marriage, respondent was not having a house of his own.
Petitioner was residing with the respondent, his brothers and
sisters in the family house of the respondent. The gold
ornaments and cash received by the petitioner at the time of her
marriage were entrusted with the respondent as a trustee. Out
of the gold ornaments, 35 sovereigns of gold ornaments and an
amount of Rs.5,00,000/- were utilised by the respondent for
meeting the necessities of his brothers and sisters. After the
marriage, the respondent and his family members started
harassing the petitioner both physically and mentally. Within
one month from the date of marriage, she conceived and she
gave birth to the second petitioner on 16.10.1995. She
delivered the child from her house. After delivery, the
petitioners were residing in the tharavadu house of the
respondent. When the respondent came on leave from abroad,
the family members of the respondent raised so many
complaints against the first petitioner and thereafter, their
cruelty towards her increased. She was found fault for even
trivial matters. The younger brother of the respondent Mr.Jilson
came from Gulf after resigning his job. Thereafter, he started
sending money to the petitioner through his younger brother
and he used to give only meager amounts by way of
maintenance to the petitioner that too once in four months. She
was not even allowed to go to her family house by the members
of the respondent's family. The respondent was showing more
love and affection towards his family members than towards the
petitioners. He used to come drunk along with his own brother
and physically harassed the first petitioner. There were
mediation talks at the instance of the brothers of the first
petitioner with the respondent and he and his family members
agreed that they would not harass her. It was also agreed that
by using the share of the respondent, a house could be
constructed for the respondent in the family property and
brothers of the first petitioner would meet the expenses for
construction of the building. They spent Rs.6,00,000/- and
constructed a building in the plot given to the respondent. The
amount was entrusted to the brother of the respondent for
construction of the building. He utilised a portion of the amount
for buying a car for him. After completion of the house, they
started residing in the newly constructed building. But, the
making of false complaints against the first petitioner continued.
They even threatened her to do away with her. On 03.12.2006
at about 10 'o' clock, the brother of the respondent assaulted
the first petitioner by kicking her on her body and manhandled
her by beating on several parts of her body. On the next day
when she woke up, it was found that she was lying inside a
room locked from outside. She was not even allowed to go to
hospital. Again, there was a compromise and even thereafter,
the ill treatment continued. So, she filed a complaint against
the younger brother of respondent before the Judicial First
Class Magistrate Court, Ernakulam alleging offence under
Section 498A and Section 341 of Indian Penal Code and the
same was forwarded to the police under Section 156(3) of Code
of Criminal Procedure. Thereafter, she was denied maintenance.
The respondent is working in a company in Kuwait for the last
sixteen years. He was getting a monthly income of Rs.55,000/-
per month. She is without any job and she is unable to
maintain herself and the second petitioner. Second petitioner is
studying in 8th Standard in a convent girls' High School,
Pachalam. They require an amount of Rs.5,000/- and
Rs.4,000/- per month respectively for their maintenance. So,
they prayed for allowing the application.
3. Respondent filed objection contending as follows:
He had admitted the marriage and paternity of the second
petitioner, but, denied the allegations of cruelty alleged against
him and his family members. He also denied that first petitioner
was given 65 sovereigns of gold ornaments and cash of
Rs.5,00,000/- at the time of marriage and a portion of the same
was misutilised by the respondent. The first petitioner was
working in an orphanage at Bishop House, Thiruvananthapuram
at the time of marriage. He came to know about her through
his elder sister who is a nun. His elder sister Bessy felt
sympathy on the poor condition of the first petitioner and
requested the respondent to give a life to her. So, he decided to
marry her under the impression that since she was working in
an orphanage, her character and behaviour would be good and
she would be a loyal wife. Her financial condition was pathetic
at the time of marriage. They were residing in a hut at
Puthuvila at the time of marriage. The father of first petitioner
was having ownership over 21 cents of land and another 6 cents
of land. He promised to assign 6 cents of land to the first
petitioner as her family share. But, he did not transfer the same
in favour of the first petitioner till his death. It was the church
authorities who took initiative for the marriage of the first
petitioner. The allegation that the respondent was not
maintaining her is not correct. He used to send Rs.7,000/- per
month to the first petitioner towards her expenses. He provided
everything for the petitioners. The allegations that he used to
send only Rs.500/- occasionally and that too through his brother
is not correct. The allegations that she was ill treated by him
and his family members also is not correct. The allegation that
her family members helped by giving Rs.6,00,000/- for
construction of the house in the family property and the
allegation that his brother had misused a portion of the amount
and purchased a car etc., are not correct and hence denied. In
fact, all facilities were given to her in the new house and the
house was constructed with his funds. She was having illicit
connection with one Advocate by name Ajith Krishnan and she
was leading an adulterous life with him. The allegation that he
was getting a monthly income of Rs.55,000/- is not correct. He
was getting only a monthly income of Rs.25,000/- and used to
send money after minimizing his expenses in Gulf. In fact, the
respondent is not allowed to enter the house and he has been
thrown out of the house. He is living in hostels at the mercy of
others. The allegation that his brother trespassed into the
house of the petitioner and assaulted her is not correct and it is
a cooked up story. The said Ajith Krishnan and another person
named Krishnan who are claimed to be relatives of the first
petitioner were the members of the ruling party and at their
influence, no cases were registered against the petitioner though
complaints were given and false cases were registered against
them. She used to go along with the said Ajith Krishnan and
she used to return home very late in the night. He used to visit
the house frequently at the time when she was alone in the
house. When he came to know about the illegal connection, he
advised her not to repeat the same and look after the child
properly. But, that was not heeded by the first petitioner and
she is continuing her adulterous life with the said Ajith Krishnan.
So, she is not entitled to get any maintenance. He is now
residing in a men's hostel at Aluva paying a rent of Rs.3,000/-.
He is also suffering from several diseases including high blood
pressure with diabetes and cholesterol. He is undergoing
treatment for Coronary Artery disease. So, he is unable to
maintain the petitioners by providing independent and separate
maintenance. She is now trying to grab the money as claiming
maintenance for the second petitioner as well. So, he prayed for
dismissal of the application.
4. PWs 1 to 3 were examined on the side of the
petitioners and Ext.A1 was marked on her side. RWs 1 to 6
were examined on the side of the respondent and Ext.B1 series,
B2 to B6, B7 series, B8 series, B9 to B12, B13 series, B14 and
B15 and X1 and X2 were marked on his side.
5. After considering the evidence on record, court below
found that the second petitioner has become major and no claim
for maintenance had been filed by filing a separate vakalath for
R.P.(F.C.).No.323 of 2014 : 8 :
her and so, she is not entitled to get maintenance and first
petitioner was leading an adulterous life and as such, she is not
entitled to get maintenance and dismissed the application.
Aggrieved by the same, the present revision has been filed by
the revision petitioners - petitioners before the court below.
6. Heard both sides and perused the records.
7. The Counsel for the petitioners argued that the
evidence of RWs 1 to 6 is not sufficient to come to the
conclusion that the first revision petitioner is leading an
adulterous life so as to deny maintenance to her. RW1 had no
direct knowledge about any of the things about the alleged
adulterous life said to have been lead by PW1. RW2 is the
brother of the respondent who was inimical terms with the first
petitioner as he used to assault her and she had filed a
complaint against him also and he is the person behind all these
things. So, his evidence also cannot be relied on for the
purpose of proving the alleged adulterous life. RWs 3 and 4
were examined for the purpose of proving the account
statements Exts. X1 and X2 to show that he was sending money
to the petitioner. Though RW5 was examined to prove that first
petitioner is leading an adulterous life with Ajith Krishnan, she
did not support the case of the respondent. RW6 had only
R.P.(F.C.).No.323 of 2014 : 9 :
stated that he used to see Ajith Krishnan coming to the house of
the first petitioner and he came to know about an incident in
which RW2 had stopped the car when she was travelling along
with Ajith Krishnan. He had also no direct knowledge about the
same. So, his evidence is not sufficient to come to the
conclusion that she is having illicit connection leading to
adulterous life so as to deny maintenance. Further, in some of
the complaints filed against her, such an allegation has not been
made. So, under the circumstances, the evidence adduced is
not sufficient to come to the conclusion that she is leading an
adulterous life with Ajith Krishnan so as to deny maintenance to
her as found by the court below. The second petitioner after
attaining majority had filed vakalath. So, the observation made
by the court below that, after attaining majority, she did not
pursue her claim for maintenance is not correct. There is
nothing on record to show that she is having independent
income to maintain herself. Being a female child, she is entitled
to get maintenance till her marriage or she is capable of
maintaining herself. The said Ajith Krishnan is none other than
her mother's sister's son and as requested by PW2, he was
assisting her and it was he who had filed the maintenance
application and also the complaint. The allegation of adulterous
R.P.(F.C.).No.323 of 2014 : 10 :
life is not correct and all these have been projected at the
instance of his brother RW2 and so, the finding of the court
below is not proper and they are entitled to get maintenance.
The allegation that he is residing in a hostel and he is without
any employment and suffering from several diseases etc., is not
correct.
8. On the other hand, the Counsel for the respondent
argued that the evidence of PW2 will go to show that the first
petitioner travelled in the car of Ajith Krishnan in which PW3
also travelled and the reasons stated was that they went in the
car for enquiring about the possibility of getting a scholarship for
the second petitioner and it was admitted by PW1 that she being
a daughter of an NRI, she is not eligible for scholarship.
Further, in the case of adultery, there will not be any direct
evidence available and court will have to consider the
circumstances as to whether the allegation of adultery has been
proved or not. Further, that can be proved only by
preponderance of probabilities. So, the evidence adduced will
go to show that she is leading an immoral adulterous life with
the said Ajith Krishnan and as such, court below was perfectly
justified in denying maintenance to her. He is now without any
employment and suffering from several diseases and so, he is
R.P.(F.C.).No.323 of 2014 : 11 :
unable to pay any maintenance to them as well. According to
him, court below was perfectly justified in denying the
maintenance to the petitioners and rightly dismissed the
application.
9. It is also submitted that being a revisional court, this
court cannot impose its own views as the revision jurisdiction is
very limited and this court can only consider as to whether the
findings arrived at by the court below on the basis of the
evidence is also possible and unless it is found to be perverse,
this court cannot reverse the finding of the court below.
10. It is an admitted fact that respondent married the
first petitioner as per Christian custom to which they belong and
they were living together as husband and wife in the tharavadu
house of the respondent. It is also an admitted fact that the
second petitioner was born to them in that wedlock. It is also
an admitted fact that, at the time when the marriage took place,
he was working in gulf and he was providing maintenance to the
petitioners. It is also in a way admitted that, when the
allegations of immoral life with Ajith Krishnan was projected by
his brother RW2, the relationship strained. It is also in a way
admitted that a new house was constructed in the family
property of the respondent and the petitioners were residing in
R.P.(F.C.).No.323 of 2014 : 12 :
that house. The fact that Ajith Krishnan, a practicing lawyer
used to visit the first petitioner occasionally was admitted by
her. Her case was that, he is her mother's sister's son and since
in the absence of the respondent, she was being ill treated by
his brother and making her life miserable in the house. When
she made the complaints, he used to come to help her to get
protection from the ill treatment of the family members of the
respondent.
11. Section 125(4) of the Code of Criminal Procedure
says that no wife shall be entitled to receive an allowance of
maintenance or interim maintenance and expenses of
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. In this case, the allegation was
one of living in adultery with one Ajith Krishnan.
12. In the decision reported in Pattayee Ammal Vs.
Manickam Gounder and another [1967 Cri.L.J. 900
(Vol.73, C.N.229)] equivalent to [AIR 1967 MADRAS 254 (V
54 C 81)], the Madras High Court observed that, adultery,
from its nature, is a secret act. Direct evidence of an act of
adultery is extremely difficult. It is very rarely indeed that the
R.P.(F.C.).No.323 of 2014 : 13 :
parties are surprised in the direct act of adultery. Direct
evidence, even when produced, the court will tend to look upon
it with disfavour, as it is highly improbable that any person can
be a witness to such acts, as such acts are generally performed
with at most secrecy. It is further observed in that decision that
taking comprehensive view of the case law as to standard of
proof necessary in matrimonial causes that the facts and
circumstances of the case would not certainly lead a reasonable
man to the conclusion that the appellant had been living in
adultery with the second respondent. Further, in paragraph 9 of
the judgment, it has been observed that, "is living in adultery"
to mean a continuous course of adulterous life as distinguished
from one or two lapses from virtue. Living in adultery is wider
than mere living as a concubine or as a kept mistress. The word
"is living" cannot mean "was living". It is true that it would not
be possible to lay down any hard and fast rule. Each case must
be decided upon its own facts.
13. In the decision reported in Chandrakant Gangaram
Gawade Vs. Sulochana Chandrakant Gawade and others
[1997 CRI.L.J.520], it has been observed that mere stray or
single lapse is not sufficient to constitute living in adultery.
Proof of continuous course of adulterous conduct is necessary.
R.P.(F.C.).No.323 of 2014 : 14 :
The same view has been reiterated in the decision reported in
Baishnab Charan Jena Vs. Ritarani Jena [1993
CRI.L.J.238], where it has been observed 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. Very allegation by husband and members
of his family castigating wife as a person living in adultery or
having extra marital relationship is insulting and humiliating
entitling her to live separately from her husband and to claim
maintenance from him.
14. In the decision reported in Jagan Nath Vs. Mst.
Sarjoo [1971 CRI.L.J.158 (Vol.77, C.N.50)], it has been
observed that living in adultery means outright adulterous
conduct where wife lives in quasi permanent union with whom
she commits adultery. In the decision reported in Smt.
Mehbubabi Nasir Shaikh Vs. Nasir Farid Shaikh and
another [1977 CRI.L.J.391], it has been held that courts are
not justified in suspecting chastity of woman merely because
husband casts aspersions on her chastity. In the decision
reported in S.S.Manickam Vs. Arputha Bhavani Rajam
[1980 CRI.L.J.354], it has been observed that, while
considering the words provided in Section 125(4) of Code of
R.P.(F.C.).No.323 of 2014 : 15 :
Criminal Procedure 'is living in adultery' it would not take into its
fold stray instances of lapses from virtue, it would not also mean
that the wife should be living in adultery on the date of the
petition. The proper interpretation would be that there should
be proof of adulterous living shortly before or after the petition,
shortly being interpreted in a reasonable manner viewing it in
the light of the facts of the case. It is further observed in the
same decision that, when the husband challenges the claim for
maintenance of his wife, alleging that his wife is living in
adultery, the husband ought to begin his case and prove the
allegation of such adulterous life on the part of the wife by
letting in evidence of her continued adulterous conduct at or
about the time of the application and then the wife against
whom such a charge is made ought to be given an opportunity
to rebut such allegation. In the same decision, it has been
observed that, the provisions do not apply to a divorced 'wife' in
the form of an Obiter. The same view has been reiterated in the
decision reported Satish Kumar Arora Vs. Smt. Varsha Arora
and another [1984 CRI.L.J.1012].
15. In the decision reported in Mohandas Panicker Vs.
Dakshayani [2014 (1) KLT 397], the Division Bench of this
court has held that, in civil cases, preponderance of probabilities
R.P.(F.C.).No.323 of 2014 : 16 :
is the standard to be adopted to prove the case. No doubt,
matrimonial cases are civil proceedings and Court can act upon
preponderance of probabilities, especially in adultery cases,
since it is difficult to get direct evidence. Even in that case, the
Division Bench of this court has observed that, in case where the
evidence adduced on the side of the husband leads to the
irresistible conclusion that in all probabilities, the relationship
between the wife and the person with whom she is said to have
adulterous relationship is of permanent nature and lead to a
conclusion that they are living in adultery, then only court can
come to such a finding to grant the relief to the husband. So,
with this principles in mind, the case in hand has to be
considered.
16. RW1 is the husband of the first petitioner and he had
no direct knowledge about the allegation of adultery or the illicit
relationship between PW1 - the first petitioner and the said
Ajith Krishnan. He is only relying on the hearsay knowledge of
instances given by his brother RW2 on this aspect. Even
according to the evidence of RW2, he had only seen PW1 going
along with Ajith Krishnan in a car along with PW3 and at that
time he along with others obstructed the same and took some
photos and objected their going together. He had no case that
R.P.(F.C.).No.323 of 2014 : 17 :
he had seen them in any suspicious circumstances. It was also
brought out in evidence that the petitioner had filed a complaint
against him for assaulting her and he is not in good terms with
the first petitioner. So, his evidence is also not sufficient to
come to the conclusion that the relationship even admitted
between first petitioner and the said Ajith Krishnan will be
sufficient to lead to a conclusion that they are living in adultery.
The evidence of RW6 is also not sufficient to come to such a
conclusion as he had no direct knowledge about the alleged
incident in which people had stopped the car in which PW1 was
travelling along with the said Ajith Krishnan on a particular day
and he had knowledge about that incident as spoken to by RW2
who is his friend. PW3 was examined on the side of the first
petitioner to prove the circumstances under which they
happened to travel together in the car with Ajith Krishnan. She
had stated that she along with PW1 went in the car of Ajith
Krishnan to get a stamp paper for the purpose of submitting an
application for scholarship for their children who were studying
in the same school. Except that incident, there is no concrete
evidence adduced on the side of the respondents to prove that
their relationship is in the nature of living in adultery. Even
assuming that they were travelling together in a car or they
R.P.(F.C.).No.323 of 2014 : 18 :
were meeting frequently alone is not sufficient to come to a
conclusion that they were living in adultery as contemplated
under Section 125(4) of the Code of Criminal Procedure to deny
maintenance to her.
17. Further, court must be slow in questioning the
chastity of woman unless there is strong circumstance available
to come to such a conclusion. Mere suspicion alone is not
sufficient to come to the conclusion that she is living in
adulterous life. Here even assuming that the entire allegations
were accepted, it will not lead to an inference that they were
living in adultery so as to give an impression that the alleged
adulterous conduct of first petitioner was of permanent nature
and they are leading an immoral life so as to bring their
relationship in the nature of an adultery a matrimonial offence
so as to deny maintenance to the first revision petitioner.
Further, the evidence of PW1 and PW2 will go to show that there
is some family relationship between PW1 and said Ajith Krishnan
and it was he who helped them in filing the complaint against
RW2 and for filing this application for maintenance etc. Further,
no steps taken by the respondent to dissolve the marriage with
PW1 on the ground of adultery as well. So, under the
circumstances, court below was not justified in relying on the
R.P.(F.C.).No.323 of 2014 : 19 :
evidence of RWs 2 and 6 to come to the conclusion that she is
living in adultery and the adulterous life of PW1 with the said
Ajith Krishnan was proved by preponderance of probabilities so
as to deny her the maintenance under Section 125 of the Code
of Criminal Procedure. So, the finding of the court below on this
aspect is liable to be set aside as it is perverse and against the
decision of courts on this aspect and respondent is liable to pay
maintenance to her.
18. There is no evidence to prove that the first petitioner
is having any employment or she is getting any independent
income to maintain herself and the child. It was in a way
admitted that the respondent was working in gulf at the time of
marriage. Though he had produced documents to prove that he
is having some illness, there is no evidence to show that he is
completely incapable of doing any work and earn anything to
provide maintenance to his wife and child.
19. As regards the second petitioner is concerned, the
observation made by the court below that she did not pursue
her claim for maintenance after she became major appears to
be not correct, because, she filed the vakalath after she attained
majority and that was overlooked by the court below. Further,
it is settled law that as regards the female children are
concerned, they are entitled to get maintenance till their
marriage unless it is proved that she is having independent
income to maintain herself after she attained majority. No such
evidence was adduced in this case. She had pursued her claim
for maintenance by filing this revision also. So, under the
circumstances, the finding of the court below that she did not
pursue her claim for maintenance and as such she is not entitled
to get maintenance is also not correct. So, the petitioners are
entitled to get the maintenance from the respondent and he is
liable to pay maintenance to them as well.
20. It is in a way admitted that he is not now working in
gulf. But, he had not adduced any evidence to prove the source
of his income for his livelihood also. It cannot be believed that
he is living at the mercy of his brothers and other family
members as claimed by him. It was brought out in evidence
that he was paying rent for the hostel where he is said to have
been residing now. It was also in a way admitted that the
petitioners are residing in the house constructed in the family
property of the respondent and there is dispute regarding as to
who had spent the money for construction of the house.
Further, it is settled law that the maintenance must be provided
in such a way as to give a decent life for the wife and child and
to avoid vagrancy and destitution in their life. It must be
reasonable and decent also and it should not be a pittance. So,
considering the status of the parties and also the present
condition of the respondent, this court feels that fixing an
amount of Rs.2,500/- to the first petitioner and Rs.2,000/- to
the second petitioner will be sufficient maintenance to meet
their requirements and they are entitled to get the amount from
the date of petition as well. So, the order of the court below
dismissing the application is set aside and the petition is allowed
as follows:
i) The finding of the court below that first petitioner is
not entitled to get maintenance as she is living in adultery with
one Ajith Krishnan is set aside and it is held that she is entitled
to get maintenance from the respondent and he is liable to pay
maintenance to her.
ii) The finding of the court below that since the second
petitioner has become major and after attaining majority, she
did not pursue for her claim for maintenance by filing a separate
vakalath is also not correct as she filed vakalath after attaining
majority and she filed the present revision along with her
mother pursuing her claim for maintenance and that finding is
set aside and she is also entitled to get maintenance from the
respondent.
iii) The respondent is directed to pay maintenance per
month at the rate of Rs.2,500/- to first petitioner and
Rs.2,000/- to the second petitioner from the date of petition.
Four months time is granted to the respondent to pay the
arrears of maintenance in four equal monthly installments.
With the above directions and observation, the revision is
allowed in part and disposed of accordingly.
Sd/-
K.Ramakrishnan, Judge.
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