Patna High Court: The present revision was directed against an order dated 30-11-2019 passed by the Court of the Principal Judge, Family Court, Buxar (‘Principal Judge’) in a case filed by petitioner with a prayer to hold that petitioner’s wife-Respondent 2, was not entitled to maintenance, in view of Section 125(5) of the Criminal Procedure Code, 1973. Bibek Chaudhuri, J., opined that simply because Respondent 2 was living with his father’s friend, named Israil Haque, even though when there was her maternal uncle in Buxar, could not be a ground to hold that Respondent 2 had physical relationship with Israil Haque, which amounted to adultery. The Court dismissed the present revision with cost of Rs. 20000 to be paid by petitioner to Respondent 2.
Background
Petitioner submitted that Respondent 2 filed a complaint against petitioner and her other matrimonial relations alleging commission of offence under Section 498-A of the Penal Code, 1860. The said case ended in acquittal because Respondent 2 failed to bring home the charge against petitioner. Petitioner submitted that Respondent 2 was residing with a person named, Israil Haque and staying together with Israil Haque by Respondent 2 amounted to adultery within the meaning of Section 497 of the IPC. Therefore, she was not entitled to get any maintenance.
The Principal Judge held that petitioner failed to prove any physical relationship between Respondent 2 and Israil Haque even if it was admitted that Respondent 2 was residing with Israil Haque. Thus, petitioner challenged the said order.
Analysis, Law, and Decision
The Court stated that petitioner failed to show any evidence that Respondent 2 married Israil Haque. The Court opined that “adultery was the act in any type of consensual physical relationship with a person other than the spouse. An adulterous relationship was established between two individuals who were not married to each other. Since the coordination was voluntary, it could also be termed as an extra marital affair or infidelity towards one’s partner. While the legal definition of adultery related to the fact of having sexual relationship with a person other than the spouse, it was also regarded as one of the major reasons for denial of maintenance allowance to the wife and her divorce. It was true that it was difficult to have an eyewitness to prove an illicit relationship. However, it could be proved indirectly by showing evidence that one of the parties to the marriage was living an adulterous relationship with a person other than his spouse”.
The Court opined that a solitary statement made in the evidence by one of the parties could not be picked up to put an imputation of illicit relationship on a lady. The Court observed that petitioner’s counsel purposefully omitted the next lines of the deposition that Israil Haque was friend of Respondent 2’s father and was aged about 60 years.
The Court opined that if residing in a house of the father’s friend amounted to adultery then there could not be any social bounding in the society and if this Court was persuaded to hold that staying in the house of an old man of different religion by a married lady amounted to adultery, then the entire social relation between man and man, man and women was to be looked into only in terms of sexual relationship. No other relationship like affection, love, fellow feeling, affection towards the friend’s daughter, affection towards friend’s son, affection, and normal friendly relationship with friend’s wife, between the wives of two friends were to be regarded in terms of sexual relationship.
The Court opined that simply because Respondent 2 was living with his father’s friend even though when there was her maternal uncle in Buxar, could not be a ground to hold that Respondent 2 had physical relationship with Israil Haque, which amounted to adultery. The Court opined that the contention raised in the present revision was absolutely perverse, if not obnoxious. Thus, the Court dismissed the present revision with cost of Rs. 20000 to be paid to Respondent 2.
[Rajesh Kumar Gupta v. State of Bihar, 2024 SCC OnLine Pat 580, Order dated 6-3-2024]
Advocates who appeared in this case :
For the Petitioner: Rabindra Kumar Choubey, Minu Kmari, Advocates
For the Respondents: Sunil Kumar Pandey, APP
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