Sau. Shubhangi Ashish Dandale & Anr. vs Ashish

Rule. Rule returnable forthwith with the consent of the parties taken up for final disposal.

Heard Mr. Sameer Purwar on behalf of Mr Nikhil Tekade, learned counsel for the applicants and Mr. Malhar Deshpande, learned Advocate holding for Mr. U.J. Deshpande, Advocate for the respondent.

The applicants have filed the present application seeking to quash and set aside the judgment dated 03.06.2024 passed by the learned Family Court, Akola in Petition No.E-15/2021, and further seeking a direction to allow the application filed by the applicants under Section 125 of the Code of Criminal Procedure (hereinafter referred to as “Cr.P.C.” for short).

Learned Counsel for the applicants submit that the application filed under Section 125 of the Cr.P.C. came to be erroneously rejected by the learned Trial Court without appreciating the fact that the applicant was the legally wedded wife of the respondent-husband and due to the breakdown of the matrimonial relationship, she was left in destitution and vagrancy. It is further submitted that the application under Section 125 of the Cr.P.C. was rejected solely on the ground that the applicant was found to be indulging in adultery. The judgment of the Family Court granting decree of divorce ex parte came to be relied upon by the trial Court while rejecting the application under Section 125 of the Cr.P.C. filed by the applicants herein. The provisions of Section 125 of the Cr.P.C. have been the subject matter of interpretation in various judgments rendered by the High Courts as well as the Hon’ble Supreme Court. The Hon’ble Courts have consistently held that mere allegations of adultery, in the absence of cogent and reliable evidence, cannot, by themselves, constitute a sufficient ground for denying the benefit of maintenance to a wife. As per the provisions of sub-section (4) of Section 125 of the Cr.P.C., the husband is required to establish by cogent evidence, that the applicant-wife was living in adultery. In the present case, the respondent-husband has failed to prove, beyond reasonable doubt, that the applicant was living in adultery at the time of filing of the application. Therefore, the applicants cannot be said to fall within the ambit of sub-section (4) of Section 125 of the Cr.P.C., so as to disentitle them from claiming maintenance.

The learned Family Court has relied upon the ex parte decree of divorce, which was passed on the ground of adultery, to deny the benefit of maintenance to the present applicants under Section 125 of the Cr.P.C. According to the learned Counsel, the Family Court had committed a patent error in relying upon the divorce decree to conclude that the applicant no.1 was living in adultery. The divorce decree was also passed on the basis of the statements recorded under Section 161 of the Cr.P.C. made by applicant No.1 and the other respondent, namely, Apturkar, wherein they had allegedly admitted to being in a live-in relationship with each other after the separation of applicant No. 1 from the present respondent-husband. The applicant-wife has already challenged the said decree of divorce by preferring an appeal before the competent Court. Unless and until the said proceedings attain finality and it is conclusively established that the applicant-wife was living in adultery, the benefit of maintenance under Section 125 of the Cr.P.C. cannot be denied to her on the basis of the said decree. The applicant-wife, having been left to destitution and vagrancy, cannot be deprived of the statutory remedy of maintenance under Section 125 of the Cr.P.C. The object of Section 125 is the welfare of the destitute woman and therefore cannot be construed in a manner denying the benefit to the legitimate claimant like that of the present applicant-wife. The fact remains that the child born out of the wedlock is still staying with the present applicant-wife and the applicant-wife is taking care of the said child. Learned Family Court while granting maintenance to the applicant no.2-child, has denied the benefits of maintenance to the applicant no.1-wife without any proof of adultery. The impugned order is, therefore, erroneous, unjust and improper and calls for interference by this Court in exercise of its revisional jurisdiction. The impugned order may therefore be quashed and set aside, thereby directing the respondent husband to pay the amount of maintenance of Rs.15,000/-as claimed for by the present applicants in the application under Section 125 of Cr.P.C. filed by her.

On the other hand, learned Counsel for the respondent strongly opposed the present application on the ground that the applicant-wife was found to be involved in adultery after separation from the present applicant. The applicant-wife was found residing at her parental home at Kherda (Bk.), Tq. Barshi, District Akola. The father of the applicant wife had filed a missing report being Missing Report No.18/2017 on 21-03-2017. The said missing report was investigated by the concerned Police Officer. The Police Station Officer ultimately found that the applicant-wife was residing with one Apturkar in a live-in relationship. The statement of the applicant and one Apturkar came to be recorded during the investigation of the missing report wherein the present applicant-wife in her statement dated 30-03-2017 has specifically denied any relationship with the husband (respondent herein) and had voluntarily made a statement that she is willingly residing alongwith one Sunil Wasudeorao Apturkar, resident of Gajanan Residency, Plot No.202, Malkapur. Learned 6^th Joint Civil Judge Senior Division, Akola relying upon such statement of the applicant-wife, during the investigation in the missing report, and also relying upon the statement of Sunil at Exhibit-69, had passed the decree for divorce on the ground of adultery. The said decree has been challenged by the applicant-wife by preferring an appeal. However, there is no stay operating against the said decree of divorce granted by the learned 6th Joint Civil Judge, Senior Division, Akola, in HMP No.58/2018. The respondent-husband has already remarried and has a child to look after. Thus relying upon such decree for divorce granted by the learned 6^th Joint Civil Judge Senior Division, Akola vide judgment dated 04-05-2022, the learned Family Court has rightly denied the maintenance considering the provision under Section 125(4) of the Cr.P.C. The impugned judgment is just and proper and does not warrant any interference by this Court and is thus liable to be maintained.

Learned Counsel further relies upon the judgment of the Chhattisgarh High Court at Bilaspur in the case of Resham Lal Dewangan S/o Shri Ramdheen Dewangan vs Suman Dewangan D/o Late Shobhram Dewangan, reported in 2025 SCC OnLine Chh 5619 and Himanshu Chordia V State of Rajasthan and another, reported in 2026 SCC OnLine SC 1461. He further submits that where the husband raises an objection under Section 125(4) of the Cr.P.C. and is able to prima facie establish that the wife was living in adultery through evidence, the bar under the said provisions would operate and the husband is not obliged to pay maintenance. Learned Counsel, therefore, submits that no case is made out for interference of this Court in exercise of its revisional jurisdiction under Section 397 of the Cr.P.C. The present application, being devoid of substance and merit, is therefore liable to be dismissed.

I have gone through the judgment and order dated 03.06.2024 passed by the learned Trial Court, whereby the application filed by the applicant-wife under Section 125 of the Cr.P.C. came to be rejected on the ground that the bar contemplated under Section 125(4) of the Cr.P.C. was attracted. I have also gone through the decree for divorce granted by the learned 6^th Joint Civil Judge Senior Division, Akola vide judgment dated 04-05-2022 passed in HMP No. 58/2018. The provisions of Section 125(4) reads as under :

Perusal of the aforesaid clause (4) of Section 125 of the Cr.P.C. would show that if the wife is living in adultery, she may not be entitled to receive a maintenance. The decree of divorce dated 04.05.2022 reveals that the learned 6th Joint Civil Judge, Senior Division, Akola, has recorded a specific finding with regard to the allegation that the applicant-wife was living in adultery. The learned Family Court relied upon the statement of the applicant-wife recorded under Section 161 of the Cr.P.C., as well as the statement of one Sunil Apturkar, while recording a finding that the applicant-wife was living in adultery. The statement of the applicant dated 30-03-2017 would show that the applicant has made a categorical statement that she has no concern with the family of the present respondent (husband), she is residing with her paramour Sunil Apturkar resident of Gajanan Residency, Plot No.202, Malkapur at her own will and that she intended to continue residing with him in the future. She had further stated in the statement that she had left the home of her father on her own will. The said statement came to be relied upon by the learned Family Court while recording a finding that the applicant-wife was living in adultery.

The perusal of the closure report in the missing complaint lodged by the father of the applicant-wife reveals that the father himself reported that the applicant wife was missing, which came to be registered as Missing Report No. 18/2017 at Police Station Pinjar, Barshi Takli, District Akola. The applicant wife was subsequently found residing with Sunil at Malkapur. The statement of the applicant was recorded on 30-03-2017. The statement of her paramour, namely, Sunil, was also recorded on 30.03.2017, wherein he also specifically admitted that he and the applicant-wife were residing together. Thus relying upon the such statement recorded during the course of investigation of the missing report, the Investigating Officer had filed a closure report as the missing person was found. Learned 6^th Joint Civil Judge Senior Division, Akola while considering the petition of divorce on the ground of adultery has relied upon the statements recorded during the investigation of the missing report and has passed divorcee decree. Though the said decree of divorce is under challenge, admittedly, there is no stay operating against the said decree till date. The respondent-husband has, therefore, placed reliance upon the decree of divorce dated 04.05.2022 to prima facie contend that the applicant-wife was living in adultery. Hon’ble Supreme Court in Himanshu Chordia v. State of Rajasthan & Anr (supra), has specifically observed as under :-

Thus, what has been observed by the Hon’ble Supreme Court in the above facts of the present case is that at the first instance the husband is able to ex facie establish the charge through prima facie evidence then the bar can be said to be attracted under Section 125(4) of the Cr.P.C. for denial of the maintenance to the wife. Learned Family Court while deciding the present application under Section 125 of the Cr.P.C. has not unilaterally decided the question of adultery as alleged by the wife. The opportunity was given to the applicant wife to deny such evidence brought on record by the respondent-husband in support of the allegation of adultery, which, at the first instance, prima facie establishes the said charge against the applicant-wife. The learned Family Court has relied upon a decree of divorce which is passed on the basis of the applicant wife living in adultery and held that she is not entitled for maintenance under Section 125 (4) of the Cr.P.C. The Appeal filed by wife challenging divorce on the ground of adultery is till pending. While deciding the said application, the learned Trial Court has also taken into consideration the fact that Applicant No. 2, the child, is residing with Applicant No. 1. Accordingly, the learned Trial Court has rightly granted maintenance in favour of Applicant No. 2 by directing the respondent-husband to pay a sum of Rs. 8,000/- per month towards the maintenance of Applicant No.2. In view of the aforesaid circumstances, I do not see any error committed by the learned Family Court in passing the impugned order. The impugned judgment and order passed by the learned Family Court does not call for any interference by this Court in exercise of its revisional jurisdiction. The Revision Application is, therefore, devoid of substance and merit and is accordingly dismissed.

Needless to state that the respondent-husband shall regularly pay the maintenance amount awarded in favour of Applicant No. 2, the child, in terms of the judgment and order dated 03.06.2024. Though the Revision Application has been dismissed, the respondent-husband is hereby directed to comply with the directions contained in the impugned order dated 03.06.2024 and regularly pay the maintenance amount of Rs. 8000/- per month awarded in favour of Applicant No. 2, the child.

The applicant wife would be at liberty to claim maintenance if the decree for divorce granted on the ground of adultery is set aside in the Appeal.

In view of above observations, the revision application stands dismissed.

Rule stands discharged.