Patna High Court: In a Criminal Revision Petition filed by the petitioner against the order of the Family Court to pay maintenance to his wife and daughter, alleging adultery by his wife and disputing paternity of the daughter, the single judge Bench of Jitendra Kumar, J*., upheld the order of maintenance by the Family Court holding that, “‘Living in adultery’ denotes a continuous course of conduct and not isolated acts of immorality”.
Background
The marriage between the petitioner and his wife, was solemnised according to Hindu rights and Customs. The wife claimed to have been subjected to physical assault on account of dowry and forced to leave her matrimonial house and live at her paternal home. She had no source of income to maintain herself and her daughter and was living miserably. The petitioner’s income was alleged to be Rs. 24,000/- per month from his government job and other businesses.
According to the petitioner, the marriage was forcibly solemnised, and he also disputed the paternity of the daughter stating that she was born on 8-8-2010 just four and a half months after their marriage on 18-3-2010. The petitioner claimed that his wife was in an illicit relationship with his brother and was not interested in continuing her matrimonial life with him. Additionally, his monthly income was only Rs. 11,000.
Analysis and Decision
The Court began by perusing Section 125 of the Code of Criminal Procedure, 1973 (‘CrPC’) wherein it noted that a wife is entitled to get maintenance from her husband when she is living separately from her husband, having sufficient reasons to do so and has no means to maintain herself. Also, despite having sufficient means, the husband neglects or refuses to maintain her. An exception to this is a wife living in adultery. Further, only a legally wedded wife, including a woman who has been divorced by her husband and not remarried, is eligible to claim maintenance. Also, any legitimate or illegitimate minor child is entitled to maintenance.
Concerning proceedings under Section 125 CrPC, the Court observed that it is a “settled principle of law that proceeding under Section 125 CrPC is summary in nature and meant to prevent the vagrancy and destitution of wife and children and provide a speedy remedy for the supply of food, clothing, and shelter to them. Hence, a strict standard of proof is not required in proceeding under Section 125 CrPC unlike in matrimonial proceedings, where strict proof of marriage or paternity is essential”. On this point, the Court emphasized the Supreme Court’s decision in Kamala v. M.R. Mohan Kumar, (2019) 11 SCC 491.
The Court further cited the Supreme Court in Santosh v. Naresh Pal, (1998) 8 SCC 447, wherein the Supreme Court had held: “…. In a proceeding for maintenance under Section 125 CrPC the learned Magistrate was expected to pass appropriate orders after being prima facie satisfied about the marital status of parties. It is obvious that the said decision will be a tentative decision subject to final order in any civil proceedings, if the parties are so advised to adopt…”.
Hence, the Court noted that any order of a Civil Court or Family Court regarding the validity of marriage or paternity of a child would prevail over any finding regarding the validity of marriage or paternity of a child in a proceeding under Section 125 CrPC and the party concerned would be at liberty to modify the order passed under Section 125 CrPC, by filing an application under Section 127 CrPC for alternation or modification of maintenance order under any changed circumstances.
The Court also referred to the Supreme Court’s decision in Dwarika Prasad Satpathy v. Bidyut Prava Dixit, (1999) 7 SCC 675, wherein the Supreme Court had cited itself in S. Sethurathinam Pillai v. Barbara, (1971) 3 SCC 923, and observed “… maintenance under Section 488 CrPC 1898 (similar to Section 125 CrPC) cannot be denied where there was some evidence on which conclusion for grant of maintenance could be reached. It was held that order passed under Section 488 is a summary order which does not finally determine the rights and obligations of the parties; the decision of the criminal court that there was a valid marriage between the parties will not operate as decisive in any civil proceeding between the parties”.
The Court while referring to the decision of the Supreme Court in Pravati Rani Sahoo v. Bishnupada Sahoo, (2002) 10 SCC 510, noted that the High Court, when exercising its revisional powers, generally cannot re-evaluate evidence or replace the Family Cour’s positive findings on the validity of a marriage or paternity of the child. This is only permissible if there’s a clear perversity in the factual finding or an error in jurisdiction or law. But if the Family Court makes a negative finding regarding the validity of the marriage or the paternity of the child, the High Court must re-evaluate the evidence, even acting in its capacity under revisional jurisdiction. This is crucial because a negative finding can lead to the child being declared illegitimate and the wife being branded as unchaste.
On the allegations of adultery, the Court said that:
“Living in adultery denotes a continuous course of conduct and not isolated acts of immorality. One or two lapses from virtues may be acts of adultery, but would not be sufficient to show that the woman was ‘living in adultery’. A few moral lapse and a return back to a normal life can not be said to be living in adultery. If the lapse is continued and followed up by a further adulterous life, the woman can be said to be ‘living in adultery’”.
The Court noted that the petitioner has not provided any evidence regarding the claim of adultery against his wife except for bald allegations. Further, no allegations of a similar kind have been made in the divorce petition filed by the petitioner on grounds of cruelty and desertion. It also noted that his willingness to stay with his wife shows otherwise. Also, there were sufficient reasons for wife and her daughter to live at her paternal house.
On the dispute of paternity of the daughter, the Court cited Section 112 of the Evidence Act, 1872 which talks about birth during marriage as conclusive proof of legitimacy unless it can be shown that the parties to the marriage had no access to each other at any time when the child could have been begotten. On this issue, the Court referred to the Supreme Court’s decision in Aparna Ajinkya Firodia v. Ajinkya Arun Firodia, (2024) 7 SCC 773, wherein the Supreme Court had observed that the objective of Section 112 is to attach “unimpeachable legitimacy to children born out of a valid marriage”.
The Court further cited the Supreme Court’s decision in Goutam Kundu v. State of West Bengal, (1993) 3 SCC 418, where the Supreme Court had stated that Section 112 is based on the maxim pater est quem nuptiae demonstrant which means he is the father whom the marriage indicates. The Court held that the daughter is the legitimate child of the petitioner born during the substance of a valid marriage between the petitioner and wifei. Further, the Court held that both wife and her daughter are entitled to receive maintenance from the petitioner. Regarding the issue of the quantum of maintenance, the Court upheld the quantum decided by the Family Court. Hence, the Court dismissed the present petition.
[Avadh Kishore Sah v. State of Bihar, Criminal Revision No. 262 of 2020, decided on 07-05-2025]
*Judgment by Jitendra Kumar, Justice
Advocates who appeared in this case :
For the petitioner: Ranjan Kumar Jha, Mirtunjay Kumar Mishra, Rana Pratap Singh, Nitu Kumari, Advocates
For the respondent: Assistant Public Prosecutor Upendra Kumar, Sr. Advocate Sanjeev Kumar Mishra, Manini Jaiswal, Binay Krishna, Manas Rajdeep, Advocates
