Hulas Ram Sahu Vs Smt.Saraswati Sahu and Anr.

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2024:CGHC:48642

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Digitally signed by ANJANI KUMAR ALLENA Date: 2024.12.11 17:56:33 +0530

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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CRR No. 223 of 2012

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Hulas Ram Sahu, aged about 33 years, S/o Shri Avadh Ram Sahu , R/o Veersinghpur (Pali), Khairdapai (behind Khermata), Ward No 14 Qr. No 124, P.S. Veersinghpur (Pali) Distt. Umaria M.P.

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... Applicant/Non-applicant

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versus

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1 - Smt.Saraswati Sahu, aged about 23 years, W/o Shri Hulasram Sahu,

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2 – Ku. Tanya, aged about 3 years, D/o Hulasram Sahu, Minor through natural guardian mother Smt. Saraswati Sahu, W/o Hulasram,

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Both R/o Permanent Residence Nariyara, Tahsil – Sakti, District – Janjgir Champa, Presently residing at Kera, P.S. - Shivrinarayan, Tahsil – Shivrinarayan, District – Janjgir Champa (C.G.)

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... Non-applicants (Applicants)

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For Applicant : Shri Sushobhit Singh, Advocate. For Non-applicants : Shri Rahil Arun Kochar with Shri Leekesh Kumar and Shri Abhishek Bharti, Advocates.

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(HON’BLE SHRI JUSTICE RADHAKISHAN AGRAWAL)

Order on Board

10/12/2024

Heard.

The present revision is filed under Section 19 (4) of the Family Courts Act being aggrieved by the order dated 17.01.2012 passed by learned Judge, Family Court, Janjgir Champa (C.G.) (hereinafter referred to as the Family Court) in Misc. Criminal Case No.63/2007, whereby, the application filed under Section 125 of the Cr.P.C. by the Non-applicants has been partly allowed by the Family Court while directing the applicant to pay maintenance of Rs.3,500/- per month to Non-applicant No.1 – Smt. Saraswati Sahu and Rs.3,000/- to Non-applicant No.2 Ku. Tanya from the date of order, i.e.,

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17.01.2012 while entitling Non-applicant No.1 to receive amount on behalf of Non-applicant No.2 as Non-applicant No.2 is minor. It is this order, the applicant is before this Court to impugn the same.

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During the course of arguments, learned counsel for the applicant submits that he is not challenging the maintenance order passed in favour of daughter Ku. Tanya – Non-applicant No.2, but only challenging the order of maintenance passed in favour of Non-applicant No.1/wife by the learned Family Court. He further submits that statement of Non-applicant/husband (applicant herein) clearly shows that Non-applicant No.1/wife is continuously living in adulterous life with two persons. He further contends that wife herself has left the house of husband to live in adulterous life. The applicant has filed an application under Section 9 of Hindu Marriage Act, 1955 (hereinafter referred to as the Act of 1955) before the Additional District Judge, Umaria (M.P.), in which, judgment and decree was passed by the said Court on 23.01.2004 holding clearly that the wife has illicit relations with her brother-in-law (Jija) and one Mandu and has left the husband and having held so, the said Court passed the decree in favour of applicant/husband and against wife and despite that Non-applicant No.1/wife did not join the company of the applicant. He also submits that applicant/husband has also filed an application under Section 13 of the Act of 1955 for grant of decree of divorce, in which, the Court of Additional Judge to the Court of 3 rd Additional District Judge (F.T.C.), Shahdol passed a decree of divorce on 19.06.2009 wherein also it is clearly held that wife is living in adulterous life, therefore, decree of divorce was granted. He next contends that both the judgments and decrees have not been challenged by the wife though she is well aware of the cases, which were filed in Umaria Court. He further submits that wife has lodged a report under Section 498-A of IPC against the applicant/husband, in which also, he was acquitted by the J.M.F.C. Jaijaipur on 16.12.2012. Lastly, he submits that maintenance amount passed in

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favour of daughter Tanya was enhanced from time to time by the Family Court and now the maintenance amount was enhanced to Rs.7,000/- per month, which was passed on 07.06.2019.

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Learned counsel for Non-applicant No.1/wife, on the other hand, submits that applicant/husband has failed to prove that wife is living in adulterous life and the learned Family Court has rightly passed the order maintenance in favour of Non-applicants (wife and daughter). He further submits that judgments passed by the Court at Umaria are ex parte judgments and decrees, therefore, the order dated 17.01.2012 passed by the learned Family Court is just and in accordance with law. Learned counsel for Non-applicant No.1/wife fairly admits that the maintenance amount was enhanced to Rs.7,000/- by the Family Court vide its order dated 07.06.2019.

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I have heard learned counsel appearing on behalf of the parties and perused the record minutely.

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A copy of judgment & decree dated 23.01.2004 passed under Section 9 of the Act of 1955 by Additional District Judge, Umaria, in Civil Suit No.21-A/2002 filed by the applicant would clearly show that a decree has been passed in favour of the applicant and against Non-applicant No.1/wife – Smt. Saraswati. In the said judgment, relying upon the evidence adduced by the applicant, it was held by the concerned Court that Non-applicant No.1 Smt. Saraswati has left the house of her husband/applicant without any sufficient reason as she has maintained an illicit relationship with her brotherin-law D.R.Sahu and one Mandu whereas the applicant has always been ready and willing to keep her with him. Having held so, the the application under Section 9 of the Act of 1955 was allowed while granting decree in favour of the applicant and against the Non-applicant No.1 and despite that the Non-applicant No.1 did not join the company of her husband, which has compelled him to file another application under Section 13 of the Act of 1955 wherein, based on reliable documentary evidence submitted by the applicant,

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it was held by the concerned Court at Umaria (M.P.) that it was duly proved that Smt. Saraswati did not live with her husband without sufficient reason and since she was not leading married life with the present applicant and that she was living with her brother-in-law (Jija) for establishing her illicit relationship, therefore, the concerned Court passed a decree of divorce in favour of the present applicant and thus, marriage between them has been dissolved. Therefore, on the basis of aforesaid judgments and decrees, it appears that wife has been continuously leading adulterous life with two persons.

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In her statement, A.W.1 Smt. Saraswati Sahu admitted that on 16.01.2003 she went to the Court at Umaria and came to know that the applicant has filed an application for restitution of conjugal rights. It appears that Nonapplicant No.1 was very well aware of the cases filed by the applicant before the Court at Umaria.

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Now, a question has arisen as to whether a woman, against whom decree of divorce has been passed passed by the Civil Court on the ground of adultery, is entitled for maintenance under Section 125 of Cr.P.C. from her divorced husband, before the Madras High Court in the case of M. Chinna Karuppasamy vs. Kanimozhi and the said question has been answered by the said High Court in its judgment passed on 16.07.2015, which was also reported in 2015-4-L.W.553 wherein the Court has observed that ‘A divorced wife, who lives in adultery, is disqualified from claiming maintenance under Section 125 of Cr.P.C. Para 22 of the said judgment is relevant, which is reproduced here under:-

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“22. In view of Section 41 of the Indian Evidence Act, 1872, if once the decree for divorce is granted on the ground of adultery, such finding is relevant for deciding the issue of adultery in the present case. This Court cannot sit in an appeal over the said decree for divorce granted by the Civil court, when the same has not been challenged by the aggrieved party. There can be no difference between a decree on test and an ex-parte decree, since, like a decree on contest, an ex-parte decree is also a decree passed on proof of the claim made by means of sufficient evidence. It is well known that though simply because the

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defendant has remained ex-parte, the Court shall not grant decree, unless the claim made in the plaint is proved, by means of evidence either oral or documentary or both. In the case on hand, therefore, there can be no doubt that the decree for divorce granted by the Civil court in favour of the petitioner is sufficient proof that the respondent was living in adultery. When once such a decree is in force, it is not possible for this Court to take a different view contrary to the decree granted by the Civil court. Therefore, I hold that besides, oral evidence let in, in this case, the decree granted by the Family Court clearly goes to prove that the respondent is living in adultery and thus, she suffers from the disqualification to claim maintenance from the petitioner. ”

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When the present matter is examined in the light of aforesaid decision, it is quite vivid that Non-applicant No.1 has left the house of her husband and maintained illicit relationship with two persons and that she was also well aware of the fact that applicant had filed two cases, one for restitution of conjugal rights and another for dissolution of marriage before the Court at Umaria, which were decreed in favour of the applicant and despite that those judgments and decrees remained unchallenged by the wife/Non-applicant No.1, therefore, those judgments and decrees have attained finality. In this view of the matter, the Non-applicant No.1, who lives in adultery, is not entitled to claim maintenance under Section 125 Cr.P.C.

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However, so far as grant of maintenance to daughter/Non-applicant No.2 is concerned, the Family Court at Janjgir Champa vide its order dated 17.01.2012 passed in Misc. Cr. Case No.63/2007 was justified in granting maintenance and I do not find any infirmity in such finding while granting maintenance to Non-applicant No.2 Ku. Tanya. The impugned award is modified to the extent indicated above.

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For the foregoing discussion, the revision is partly allowed.

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Sd/-

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(Radhakishan Agrawal) JUDGE

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Anjani

Hulas Ram Sahu v. Smt.Saraswati Sahu and Anr.

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Hulas Ram Sahu v. Smt.Saraswati Sahu and Anr.

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