Pat HC | Maintenance denied to wife when divorce granted on grounds of adultery, pendency of appeal to set aside such divorce decree cannot be a reason to uphold order of maintenance

Patna High Court: Ahsanuddin Amanullah, J. allowed the application of the petitioner to set aside the order granting maintenance to his wife when the divorce was granted on account of adultery on the wife’s part.

The petitioner filed an application under Section 19(4) of the Family Courts Act, 1984, against the order dated passed by the Principal Judge, Family Court, Vaishali at Hajipur which directed the petitioner to pay Rs 8,000 per month as maintenance to his wife. The order was delivered ex parte and there was no valid service of notice on the petitioner during the proceeding and, thus, he was unaware of the same. The revision petition was filed within the limitation period.

The impugned order was passed under Section 125 of the Code of Criminal Procedure, 1973 which excludes a wife living in adultery from being entitled to receive any maintenance. It was submitted that in Divorce Case filed by the petitioner against the opposite party and one Sunny

Rajak, the Principal Judge, Family Court, Samastipur by judgment dated 11-10-2017, had dissolved the marriage between the petitioner and the opposite party on the ground that she was living in adultery with Sunny Rajak. It was submitted that in the said case, Sunny Rajak had contested the suit whereas the opposite party had chosen not to contest. The learned counsel submitted that once a competent Court had held the opposite party to be living in adultery with Sunny Rajak, Section 125(4) of the Code disentitles her to any maintenance from the petitioner.

The opposite party submitted that they have challenged the decree of divorce which was still pending.

The Court held that the order passed in the Maintenance Case No. 84 of 2016, could not be sustained. Section 125(4) of the Code clearly debars a wife living in adultery from receiving any maintenance from her husband. In the present case, the marriage between the parties was dissolved on the grounds that the opposite party was found to be living in adultery with one Sunny Rajak.  Further, the Court also that mere pendency of an appeal against the order dissolving the marriage, inter alia on the ground of adultery, which till date was neither disposed of nor any interim stay of such order was granted, cannot be a ground to uphold the order impugned.

In view of the above-noted facts, the instant application was allowed and the order in the Maintenance Case was set aside.[Rajesh Rajak v. Rinku Devi, 2019 SCC OnLine Pat 1521, decided on 30-08-2019]

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