Kerala High CourtJinesh.C.R vs Aswathy.P.R on 18 February, 2022Author:Kauser EdappagathBench:Kauser EdappagathIN THE HIGH COURT OF KERALA AT ERNAKULAM\n                              PRESENT\n       THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH\nFRIDAY, THE 18TH DAY OF FEBRUARY 2022 / 29TH MAGHA, 1943\n                     OP(CRL.) NO. 27 OF 2022\nCrl.M.P.No.232/2020 in M.C.No.135/2020 dated 18.12.2021 on the file of\n                   the Family Court, Muvattupuzha.\nPETITIONER/RESPONDENT IN MC:\n\n           JINESH.C.R.\n           AGED 47 YEARS\n           S/O.LATE RAMACHANDRAN NAIR,\n           CHITTETH HOUSE, KOOOTHATTUKULAM KARA,\n           KOOTHATTUKULAM VILLAGE, KOOTHATTUKULAM.P.O.,\n           MUVATTUPUZHA, ERNAKULAM, PIN - 686662\n           BY ADVS.\n           A.RAJASIMHAN\n           VYKHARI.K.U\n           K.KAVYA MOHAN\n\n\nRESPONDENT/PETITIONER IN MC:\n\n           ASWATHY.P.R.\n           AGED 39 YEARS\n           D/O LATE REGHUNATHAN NAIR,\n           PAMPURATH HOUSE, SRAPILLY, EZHAKKARANADU KARA,\n           MANEED VILLAGE, MANEED.P.O., MUVATTUPUZHA,\n           ERNAKULAM, PIN - 682308.\n           BY ADVS.\n           RAJESH KUMAR.T\n           MANOJ V GEORGE\n           APARNA SOMARAJAN\n           ASWIN K.R.\n           MATHEWS BENNY\n\n\n      THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON\n18.02.2022,    THE   COURT   ON   THE   SAME   DAY   DELIVERED    THE\nFOLLOWING:\n O.P.(Crl.)No.27 of 2022\n\n                                  ..2..\n\n\n                              JUDGMENTThis O.P.(Crl.) has been filed challenging the order of\n\ninterim     maintenance       granted       by    the     Family    Court,\n\nMuvattupuzha         (for     short       'the    court     below')       in\n\nCrl.M.P.No.232/2020 in M.C.No.135/2020 dated 18.12.2021.2.     The    petitioner   herein     is   the    husband    of   the\n\nrespondent. Their marriage was solemnized on 12.9.2003.\n\nMarital dispute arose between them. The husband filed\n\nOriginal Petition for divorce (Ext.P2) at the Family Court,\n\nMuvattupuzha       as     O.P.(Divorce)No.918/2019        which    is   still\n\npending. Thereafter, the wife filed M.C.No.135/2020 at the\n\nsame court invokingSection 125of the Cr.P.C. claiming\n\nmaintenance from the husband at the rate of Rs.25,000/- per\n\nmonth. Admittedly, the husband is a Government servant.3.     Along with the M.C. the wife filed an application for\n\ninterim maintenance as Crl.M.P.No.232/2020. The husband\n\nopposed the said application by filing a counter statement. A\n\nspecific contention was raised in the counter statement that\n\nthe wife is not entitled to claim interim maintenance or\n\nmaintenance since she is living in adultery. A few documentsO.P.(Crl.)No.27 of 2022..3..to substantiate the said contention were also produced.\n\nHowever, the court below, after hearing both sides, allowed the\n\napplication for interim maintenance and directed the husband\n\nto pay interim maintenance at the rate of Rs.5,000/- per\n\nmonth to the wife as per Ext.P10 order. It is under challenge\n\nin this O.P.(Crl.).4.     I have heard Sri.Rajasimhan, the learned counsel\n\nfor the petitioner and Sri.Aswin.K.R., the learned counsel for\n\nthe respondent.5.     The learned counsel for the petitioner submitted\n\nthat the impugned order is illegal and unsustainable as it is\n\nagainst the provision ofSection 125(4)of the Cr.P.C. which\n\nsays that no wife shall be entitled to receive an allowance for\n\nthe   maintenance         or   the   interim   maintenance   from   her\n\nhusband, if she is living in adultery.6.     On the other hand, the learned counsel for the\n\nrespondent submitted that the question of adultery is a matter\n\nto be considered at the time of final hearing and it is not\n\npossible to decide the said question at this stage and, as such,\n\nthe order passed by the court below is perfectly legal.O.P.(Crl.)No.27 of 2022..4..7.Section 125(4)of the Cr.P.C. specifically says that a\n\nwife, who is living in adultery, is not entitled to claim for\n\nmaintenance or interim maintenance from her husband. Ext.P6\n\nis the counter statement filed by the husband to the\n\napplication for interim maintenance filed by the wife.               In\n\nparagraphs 7 and 8, the husband has, in detail, projected the\n\ninfidelity and adulterous life of the wife. It is specifically stated\n\nthat the wife is leading an adulterous life with two persons\n\nafter the marriage. The names of those two persons were\n\nalso disclosed. In support of such contention, the husband has\n\nproduced a psychological assessment record of the wife,\n\nwhich has been marked as Ext.P9, issued by a Psychiatrist\n\nwho treated the wife at Caritas Hospital. In the said document,\n\nthe Doctor has stated that the wife had an extra-marital affair\n\nwith a person whose name is disclosed in the counter\n\nstatement itself.          That apart, the husband has produced\n\na copy of the Original Petition for divorce (Ext.P7) filed\n\nby the wife of a person against her husband with whom the\n\nwife herein allegedly leads adulterous life.            In Ext.P7 also,\n\nthere        is     a   mentioning     that   the    wife   herein    isO.P.(Crl.)No.27 of 2022..5..leading an adulterous life with the respondent therein. That\n\napart, in the O.P. for divorce filed by the husband against the\n\nwife in the year 2019 also, the husband has clearly alleged\n\nthat the wife is leading an adulterous life with two persons\n\nmentioned above. Thus, sufficient materials were supplied by\n\nthe husband at the court below to prima facie substantiate his\n\ncontention that wife is leading a life of infidelity and adultery.\n\nBut, strangely enough, the court below did not take into\n\nconsideration those documents at all.               The court below even\n\ndid not meet the contention of the husband that the wife is\n\nleading an adulterous life and, hence, she is dis-entitled to\n\nclaim the maintenance.8.     When the Statute specifically says that, the wife\n\ncannot claim maintenance, if she is leading an adulterous life,\n\nit is the bounden duty of the court to meet a contention raised\n\nby   the   husband        that   the    wife   is   dis-entitled   to   claim\n\nmaintenance on account of her adulterous life. For these\n\nreasons, I am of the view that the impugned order cannot be\n\nsustained and it is to be set aside.O.P.(Crl.)No.27 of 2022..6..9.      Both the counsel submitted that the M.C. itself has\n\nbecome ripe for trial. Hence, I am of the view that no purpose\n\nwill be served in remanding the application for the interim\n\nmaintenance. The question whether the wife is leading an\n\nadulterous life is something to be decided after a full-fledged\n\ntrial. Hence, I hold that a direction to the court below to\n\ndispose of the M.C. itself at the earliest would meet the ends\n\nof justice.10.     In view of the above findings, Ext.P10 order passed\n\nby the court below stands set aside. The court below shall\n\ndispose of the M.C.No.135/2020 itself untrammelled by any\n\nobservation in this judgment within a period of four months\n\nfrom the date of receipt of a copy of this judgment.The O.P.(Crl.) is allowed as above.Sd/-DR.KAUSER EDAPPAGATH,\n                                              JUDGE\nskjO.P.(Crl.)No.27 of 2022..7..APPENDIX OF OP(CRL.) 27/2022\n\nPETITIONER'S EXHIBITS\nAffidavit         AFFIDAVIT\nExhibitP1         TRUE COPY OF THE OBJECTION IN\n                  O.P.NO.721/2017 IN THE FAMILY COURT,\n                  MUVATTUPUZHA\nExhibitP2         TRUE COPY OF THE OP(DIV) NO. 918/2019\n                  FILED ON 12-12-2019 IN THE FAMILY\n                  COURT, MUVATTUPUZHA\nExhibitP3         TRUE COPY OF THE OP(GW) NO. 23/2020\n                  FILED BY THE PETITIONER\nExhibitP4         TRUE COPY OF THE MC NO. 135/2020 FILED\n                  BY THE RESPONDENT IN THE FAMILY COURT,\n                  MUVATTUPZUHA\nExhibitP5         TRUE COPY OF THE CRL.MP NO. 232/2020\n                  FILED BY THE RESPONDENT IN THE FAMILY\n                  COURT, MUVATTUPUZHA ON 17-8-2020\nExhibitP6         TRUE COPY OF THE COUNTER AFFIDAVIT\n                  FILED BY THE PETITIONER IN CRLMP NO.232/2020 IN FAMILY COURT, MUVATTUPUZHA\n                  ON 14-12-2020\nExhibitP7         TRUE COPY OF THE OP (DIVORCE) NO.933/2020 FILED IN THE FAMILY COURT,\n                  MUVATTUPUZHA ON 23-12-2020\nExhibitP8         TRUE COPY OF THE ADDITIONAL COUNTER\n                  AFFIDAVIT FILED BY THE PETITIONER IN\n                  CRLMP NO. 232/2020 IN THE FAMILY\n                  COURT, MUVATTUPUZHA dtd.2.1.21.ExhibitP9         TRUE COPY OF THE RELEVANT PAGES OF THE\n                  TREATMENT RECORDS DATED 4-1-2021\n                  ISSUED FROM CARITAS HOSPITAL, KOTTAYAM\nExhibitP10        CERTIFIED COPY OF THE ORDER IN CRL.MP\n                  NO. 232/2020 DATED 18-12-2021 OF THE\n                  FAMILY COURT, MUVATTUPUZHA