Bom HC | No right of maintenance under S. 125 CrPC to a wife divorced on grounds of adultery

Bombay High Court: Nitin W. Sambre, J., dismissed the petitions filed by the petitioner questioning the order of denial of maintenance to her.

The petitioner was a divorced wife. The respondent (ex-husband of the petitioner) had attained a decree of divorce against her under Section 13 of the Hindu Marriage Act, 1956, on grounds of adultery. The said decree had attained finality.

Thereafter, the respondent (ex-husband) moved an application under the provisions of Section 125(4) of CrPC for cancellation of maintenance granted to the wife. The said application was rejected in the first instance by the trial court but was allowed on revision by the Additional Sessions Judge. Aggrieved thereby, the petitioner filed the instant petitions.

Mahendra B. Deshmukh, counsel for the petitioner, submitted that even if there is a decree of divorce passed on the allegation of adultery, still bar under sub-section (4) of Section 125 CrPC, will not be attracted. It was contended that even after divorce, the petitioner continued to be a woman under Explanation (b) of sub-section (1) of Section 125. Per contra, Kavyal P. Shah, counsel for the respondent, submitted that the statutory embargo under sub-section (4) applied to the instant case.

Notably, sub-section (4) Section 125 CrPC says:

“(4) No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.”

Considering the rival submissions, the High Court observed: “The fact remains that, there is an expressed embargo on the right of a woman to claim maintenance, pursuant to the provisions under sub-section (4) of Section 125 CrPC, If the allegation of adultery is proved against such a women or in spite of the husband being ready to maintain her and she refuses to cohabit the women/wife can be refused payment of maintenance.”

In such view of the matter, the Court found no merit in the instant petitions. Accordingly, the petitions were dismissed.[Sanjivani Ramchandra Kondalkar v. Ramchandra Bhimrao Kondalkar, 2019 SCC OnLine Bom 6581, decided on 18-12-2019]

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