Sikk HC | Maintenance under S. 125 of CrPC cannot be denied if the wife “commits adultery” but can only be denied if she is “living in adultery”

Sikkim High Court: Arup Kumar Goswami, CJ., dismissed the petition against the refusal to pay maintenance to the wife because she allegedly committed adultery.

The parties were married to each other but had three daughters out of wedlock. The husband with the help of the second daughter threw out the wife alleging that she had an extramarital affair. The wife alleged that she was mentally and physically tortured by the husband and had to live with her brother. The second daughter stated that she witnessed her mother commit adultery as she was in a room with another man. The petitioner moved the High Court when the Family Court allowed the wife’s claim of maintenance.

Advocate Gita Bista on behalf of the petitioner argued that the daughter saw her mother with another man inside a room and there is no reason as to why a daughter would depose falsely against her own mother, implying that wife left her husband on her own volition and hence is not entitled to any maintenance.

Legal Aid Counsel, Tashi Norbu Basi on behalf of the respondent contended that there is no conclusive proof that the wife committed adultery; they might be in the same room for some other purpose. He further submits maintenance can be denied if she is living in adultery, which is not the same thing as a single lapse from virtue.

The Court concluded that the wife hadn’t eloped but rather was forced out of her matrimonial home and that the allegations made by the husband of his wife having extramarital affairs were false as he did it with a number of people including her brother too. Further, the court stated that if the wife leaves the house of the husband because of torture and constant allegations, it cannot be said that there is no sufficient reason for the wife to leave her husband.

In the case of M.P. Subramaniyam v. T.T. Ponnakshiamal 1957 SCC Online Kar 18, Karnatka High Court considered the term “living in adultery” appearing in Section 488(4) of the Code of Criminal Procedure, 1898   which is also used in Section 125(4) of the CrPC. The Court concluded that it is not a stray act or two of Adultery that disentitles the wife from claiming maintenance from her husband, but it is a course of continuous conduct on her part it can be said that she is living an adulterous life that takes away her right to claim maintenance. There was no evidence of a continuous course of conduct demonstrating that the wife was living in adultery, hence, she can claim maintenance. [Suk Bir Chettri v. Jamuna Chettri, 2019 SCC OnLine Sikk 185, decided on 08-11-2019]

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