FASEELA Vs. SHAFEEK

JUDGEMENT

(1.) The factual aspects projected in this revision petition is as follows:

(2.) That the revision petitioner is the petitioner in M.C.No.124/2016 on the files of the Family Court, Kalpetta filed under Sec.125 of the Cr.P.C., 1973 [hereinafter referred to as the Code] seeking maintenance from the respondent who is her husband. The petitioner is aggrieved by the judgment dated 08.01.2019 in M.C.No.124/2016 whereby the petitioner seeking maintenance was dismissed on the ground that the petitioner was living in adultery and hence she was not entitled for maintenance as per Sec.125(4) of the Code. Her claim was further rejected on the ground that the she was employed in an Akshaya centre.

(3.) It is contended that the learned Family Court judge erred in finding that "the case of CPW1 that PW1 is living in adultery is most probable". This is in spite of the fact that there was no ocular or documentary evidence adduced by the respondent to prove such adultery. Even assuming the version of the respondent was accepted, it only referred to a single instance of unchastity or lapse of virtue on the part of the petitioner. It is trite law as held by this Court in Sandha v. Narayanan [1999(1) KLT 688] that in order to constitute the "act of living in adultery" there should be a continuous course of conduct or living in the State of quasi-permanent union with the adulterer. It was held that a single act of unchastity or a few lapses of virtue will not disentitle a wife from claiming maintenance from her husband under Sec.125 of the Code. The dictum in Sandha's case was followed in Sheela and another v. Albert Hemson @ James [2015 (1) KLT SN 113]. That it is an admitted fact that the petitioner is living with her parents and thus there is no evidence whatsoever to indicate that the petitioner was continuing to live in adultery. Thus, the impugned judgment of the learned Family Court Judge is erroneous and legally unsustainable, it is urged.