JHONSON KENNEDY Vs. MARGARET RITA

JUDGEMENT

(1.) THE petitioner, who is the husband of the respondent/wife, has come forward with this petition seeking for the relief of quashing the order made in Crl.RC.No.3/2003 dated 17.07.2003 on the file of the learned Sessions Judge, Udhagamandalam, Nilgiris, reversing the order made in MC.No.9 of 2002 on the file of the learned Judicial Magistrate, Udhagamandalam, Nilgiris, dated 07.01.2003 dismissing the petition filed by the respondent/wife for maintenance under section 125 Cr.P.C.

(2.) MR. Suresh Viswanath, learned counsel for the petitioner vehemently contended that the learned Sessions Judge has committed a serious error of law in reversing the well considered order of the learned Judicial Magistrate, Udhagamandalam, in dismissing the maintenance petition filed by the respondent/wife under section 125 Cr.P.C. It is contended that the learned Trial Magistrate has categorically held on the basis of the materials produced before the court below that the respondent/wife was living in adultery and as such, she is not entitled to claim maintenance from the petitioner herein under section 125[4] Cr.P.C. The learned counsel would further contend that the petitioner being the husband has discharged his burden of proving the allegation of her wife living in adultery by producing and marking the documents, viz., Exs.R.1 to 4, the letter written by the respondent/wife, medical prescription and two letters said to have been written by the respondent/wife disclosing that the respondent has admitted in her letters that she was living in adultery with some other person, viz., one Dr.Kalaivanan. It is contended that though the respondent during the course of cross-examination admitted in writing, in the letters, viz., Exs.R-1,3 and 4, it is stated that those letters have been obtained by threat and coercion. But she has not given any complaint to any police and as such, the respondent has not come forward with the true version. It is contended that if the version of the respondent is true, she could have very well given the complaint. The respondent has not produced the same before the court which falsifies the version of the respondent. Therefore, it is contended by the learned counsel for the petitioner that the learned Trial Magistrate has rightly placed reliance on the letters, Exs.R1,3 and 4 in arriving at a conclusion the respondent was living in adultery and as such, she is not entitled to claim maintenance as per provision 125[4] Cr.P.C.

(3.) PER contra, Ms.Vishnu Priya Upendran, learned counsel for the respondent appearing as Legal Aid Counsel would also vehemently contend that there is no infirmity or illegality in the order passed by the learned Sessions Judge and the learned Sessions Judge has rightly reversed the order passed by the trial court. It is contended that the husband/petitioner of the respondent having raised the allegation of "living in adultery" and he has not proved the same by producing acceptable evidence and also by eliciting answers from the cross-examination of the respondent/wife. It is contended that the respondent/wife has emphatically denied the suggestion to the effect that she has written the letters, viz., Exs.R1,3 and 4 to the effect that she was "living in adultery" with another person and she has categorically stated that those letters were obtained by threat and coercion. Therefore, it is contended that in view of such a denial, it is the burden of the husband to prove the allegation by producing acceptable evidence. It is further contended that even assuming if not admitting that the respondent was "living in adultery", the version of the petitioner/husband clearly shows that as per the letters Exs.R.1, 3 and 4 that the respondent/wife was said to have written that she had been to lodge for some time with another person and that itself would not satisfy the requirement contemplated under section 125[4] Cr.P.C., viz., "LIVING IN ADULTERY". It is vehemently contended by the learned counsel for the respondent that the solitary instance or one or two occasions of adultery said to have been committed by the respondent/wife by itself would not disentitle her to claim maintenance.