MAYABAI Vs. MURARILAL

JUDGEMENT

(1.) This petition under Section 482 of the Code of Criminal Procedure [in brief "the Code"] has been filed against the order dated 09.09.2010 passed by 1 st ASJ, Dewas in Criminal Revision No.101/2010, whereby affirmed the order dated 03.08.2010 passed by JMFC, Dewas in MJC No.34/2009.

(2.) Applicant No.1 was married with Nonapplicant and out of their wedlock one daughter Uma and son Shivam (applicant No.2) were born. The applicant No.1 - wife has filed the application under Section 125 of the Code. After inquiry, learned Magistrate vide order dated 03.08.2010 dismissed the application of applicant No.1 (wife), however, directed Non-applicant to pay maintenance @ Rs.800-00 P.M. to applicant No.2. Against that order, applicants have preferred the revision. Learned 1 st ASJ partly allowed the revision and enhanced the maintenance of applicant No.2 from Rs.800 P.M. To @ Rs.1,500-00; whereas dismissed the revision of applicant No.1. Being aggrieved, the applicants have filed this petition.

(3.) Learned counsel for the applicants submits that the Courts below have denied the maintenance to wife on the ground that she is living in adultery; whereas the finding is not based on proper appreciation of evidence. A strict proof is required to prove the adultery. Mere stray or single lapse is not sufficient to constitute "living in adultery". For this purpose, he placed reliance on the judgment of Bombay High Court in the case of Chandrakant Gangaram Gawade v/s Sulochana Chandrakant Gawade, 1997 CrLJ 520. It is also submitted that the onus to prove that wife is living in adultery is on husband as held by the Bombay High Court in the case of Nirmaldas R. Alhat v/s Sow. Sunita N. Alhat, 2006 CrLJ 2635. Whereas, in the present case the Nonapplicant/husband has failed to discharge his onus. It is further submitted that the Courts below have not noticed the circumstance that the Non-applicant has not filed any divorce petition on the ground of adultery. In such circumstances, the orders passed by the Courts below are not justified and liable to be set-aside. Thus, the applicant No.1/wife be granted maintenance.