- (1.) SAROJ Bala, J. This criminal revision is directed against the judgment and order dated 24. 4. 2003 passed by the Principal Judge Family Court Azamgarh in Case crime No. 23 of 1995 Smt. Raj Dei and. mother v. Ram Lakhan whereby declining to grant maintenance under the provisions of section 125 of the Code of Criminal Procedure (hereinafter referred to as the "code" ).
(2.) THE facts giving rise to this revision are these: THE revisionist was married to the opposite party about 25-26 years before the presentation of maintenance petition. THE Gona ceremony took place 5-6 years after the marriage. It was alleged that a son was born to her few years after the Gona ceremony out of the wedlock of opposite party. According to the revisionist there was a change in the behaviour of opposite party and he started subjecting her to assault and abuses. THE opposite party was serving in the Army and used to come home on leave. THE revisionist some how managed her stay in the marital home bearing all sorts of cruelties. Two years before the presentation of maintenance petition the opposite party brutally assaulted her and turned her out of the marital home. He threatened to kill her if she came back to his house. She came to her parental home. Her brother and respectable members of the locality tried to reason with the opposite party but he refused to keep her with him. THE opposite party did not provide maintenance to her though he was a man of means. THE opposite party was drawing more than Rs. 2000/- per month as pension and had income from agricultural land and tractor. THE opposite party contested the petition by filing written statement. He admitted having married the revisionist in the year 1954. According to him Gona ceremony took place in the year 1966. It was alleged that due to Indo-Pakistan war in the year 1971 he did not get leave to visit his native place. In January 1972 he came home on leave and joined his duty in February 1972. THE revisionist went to her parental home thereafter and gave birth to a male child in January 1973. According to him he was not the father of the child. THE opposite party alleged that the revisionist having given birth to an illegitimate child he deserted her. According to him the revisionist did not stay at his house thereafter. It was alleged that the revisionist being employed in the Health Department was capable of maintaining herself. THE Court below after taking into account the evidence adduced by the parties recorded the finding that the opposite party was not the father of the child of revisionist. THE Court below declined the grant of maintenance on the ground her adulterous relationship with another man. THE impugned judgment and order has been assailed on the grounds that it is the responsibility of the husband to maintain his wife and the wife is entitled to claim maintenance so long she stays away from the matrimonial home under the compelling circumstances. THE learned Court below erred in recording the finding that the revisionist failed to establish sufficient cause for staying away from the marital home. THE Court below while assessing the testimony of revisionist ignored the aspect that she is an illiterate and rustic woman. THE Court was much impressed by the fact that opposite party was living the life of a widower or bachelor having not entered into a second marriage. According to the revisionist there is no material on the record to establish that the child born to her was an illegitimate child. THE Court below committed illegality in construing the provisions of section 125 of the Code. Heard Shri P. K. Mishra, learned Counsel for the revisionist, Shri P. P. Singh learned Counsel for the opposite party, learned A. G. A and have perused the record. The learned Counsel for the revisionist submitted that the provisions of section 125 (4) of the Code disentitle a wife to receive allowance for maintenance if she is living in adultery or if without any sufficient reason she refuses to live with her husband. It was urged that the burden of proving the child's parentage was upon the opposite party which he miserably failed to discharge. The opposite party did not resort to D. N. A. test to establish the identity of the parent of child born to the revisionist. The learned Counsel further argued that there is sufficient material on the record for coming to the conclusion that the opposite party was the father of the child. The next submission was that the opposite party having sufficient means to provide maintenance to the wife neglected and refused to maintain her. The learned Counsel for the opposite party strenuously canvassed that the revisional Court should not interfere with the finding of fact recorded by the Court below. There is sufficient evidence to come to the conclusion that opposite party was not the father of the child born to the revisionist. The revisionist was living in adultery therefore she was not entitled to claim maintenance from her husband.
(3.) IT is well settled that section 125 of the Code has been enacted for providing speedy relief to deserted wife, children and parents. The precondition for the grant of maintenance under section 125 of the Code are that the applicant must be a wife and unable to maintain herself and her husband having sufficient means neglects or refuses to maintain her. IT is not disputed that the revisionist is legally wedded wife of the opposite party and she is residing at her parental home. Admittedly the opposite party is a retired Army personnel and is getting pension. The maintenance has been refused to the revisionist on the ground that she has incurred the disability contained in sub-section (4) of section 125 of the Code. Section 125 (4) of the Code reads as below : " No wife shall be entitled to receive an allowance for maintenance or interim maintenance and expenses of proceeding, 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. ".;