SARU BALA MEDHI Vs. SUDHI CHANDRA MEDHI

JUDGEMENT

(1.) A wife in difficulty approached the Criminal Court for maintenance of herself and one of the children who was living with her. An objection was taken to the maintenance petition on the ground that the wife was living in adultery. Nonetheless, the learned trial court grand maintenance to the wife at the rate of Rs. 60.00 per month and for the child a monthly sum of Rs. 50.00 was awarded. This had been done after coming to the conclusion that the wife could be said to be living in adultery. While fitting the puantum of compensation the monthly income of the husband was also taken note of. He was drawing a salary of Rs. 300.00 per month and had 40/50 bighas of agricultural land whose monthly income came to more than 1000.00. On revision being preferred by the husband, the learned sessio Judge, Goalpara at Dhubri allowed the petition on the ground that the wife as living in adultery and so the case was taken care of by sub-section (5) of section 125. Criminal Procedure Code. The wife has preferred this revision.

(2.) To establish the case of adulterous life, the opposite party wanted to rely on the evidence of Prafulla and Mahendra apart from what he himself had seen on 3-12-1976. The trial court did not accept the statement of Prafulla in this regard as it sounded unnatural as what he stated was that in Aug. 1975 when he was having his supposed nap around noon insides mosquito net, he saw Sashi Mohan, the alleged adulterer, bringing his wife (the petitioner) and committing adultery in the room in which Prafulla was thought to be asleep though he was not so. It is unbelievable that any rational human-being would do so in presence of some other person. What Mahendra had deposed in this regard is that he had seen Shi Mohan gossipping with the wife. This allegation is far from commission of an act of adultery as assumed. On getting this report it is stated the opposite party that he wanted to assure his mind and on 3-12-1976 arrived early (around 8 P. M.) and found Sashi Mohan coming out from bed on which she (the wife) was also found.

(3.) This being the state of affairs, it is submitted by Shri Kalitat Prafulla's evidence should be disregarded totally and what was seen by the petitioner on 3-12-1976 would be only one act of adultery whereas to bright the ease within section 125(5) there must be continuity of conduct or quasi-permanent union. He first refers to Palluyee Vs. Amnial Manickam Gounder, AIR 1967 Madras 254 , where it has been held that the expression "living in adultery" means a continuous course of adulterous life as disc quashed from one two lapses from virtue. What has been stated in Kast Vs. Ramasamy, 1979 Cr. L.J. 741 is that "living in adultery" means outright adulterous conduct where the wife lives in a quasi-permanent union with the man with whom she is committing adultery. If the evidence falls short of the requisite legal test, there is no bar for the award of maintenance to the wife. Similar view was expressed in Jatindra Nark Gouri Bala, AIR 1925 Calcutta 794, which has spoken about continuity of conduct in this regard.