Wife Must Be Living In Adultery 'At Or Around Time' Of Filing S. 125 CrPC Plea To Be Disentitled To Maintenance: MP High Court

The Madhya Pradesh High Court has recently observed that a wife can be debarred from getting maintenance on the ground of “adultery” only when she is actually “living in adultery” at or around the time of application for maintenance under Section 125 of CrPC.

A bench of Justice Prakash Chandra Gupta added that the acts of adultery by the wife have to be continuous and the liability to prove the same is upon the husband to debar wife from getting maintenance as per Section 125 (4) CrPC. 

The Court observed thus while dismissing a plea moved by a husband challenging a family court's order directing him to pay Rs.10,000/- per month maintenance to his wife (respondent) on a plea moved by her under Section 125 CrPC.

In the family court, the wife asserted that her husband began pressuring her for dowry shortly after their marriage. She claimed that when she didn't meet his demands, he resorted to physical violence against her. She further alleged that a year before filing for maintenance, her husband forced her out of the matrimonial house, leaving her to reside in a rented room without any support from him.

Contrarily, the husband contended that he never sought dowry from his wife nor subjected her to any form of harassment or cruelty regarding it. He argued that his wife left him of her own accord without justification. Additionally, he claimed that she was the aggressor in their relationship, frequently assaulting him and verbally abusing both him and his family members. He further alleged that she was engaged in obscene talk with another man and committed adultery. He asserted that she was currently residing with him in Bhopal.

However, holding that the wife had sufficient cause to stay apart from her husband, the Family Court found her entitled to maintenance. Accordingly, her application was partly allowed. Challenging the same, the husband moved the HC.

Before the HC, the counsel of the husband claimed that the petitioner had adduced sufficient and reliable evidence that the respondent/wife was living in adultery and hence, the order of the family court was erroneous. On the other hand, supporting the family court's order, the Counsel for the wife sought dismissal of the husband's plea.

At the outset, the Court noted that as per Sectio 125 (4) CrPC, a wife is not entitled to any maintenance allowance from her husband if she is living in adultery or if she has refused to live with her husband without any sufficient reason or if they are living separately by mutual consent

The Court, however, noted that the law mandates that to extract the provision under Section 125(4) of the CrPC, the husband has to establish with definite evidence that the wife has been living in adultery, and one or occasion acts of adultery committed in isolation would not amount to “living in adultery‟.

In view of this, when the Court examined the facts of the case, it found that though the petitioner/husband pleaded that the respondent/wife used to have an obscene talk with a man at night hours and she indulged in adultery with him, however, the husband did not state anything regarding this in his plea and he even could not dare to ask about the same in the cross-examination of the respondent/wife. Therefore, in the absence of evidence, the Court noted that it was not proven that the respondent/wife was living in adultery with another man

Regarding the photograph adduced by the husband (of his wife and her alleged partner), the Court noted he failed to explain that by which mobile phone, by whom and when the photographs were clicked.

The Court observed that even on being required by the trial Court to furnish a certificate u/S 65 B of the Evidence Act, the husband failed to do so and therefore, the Court stressed, on the basis of such photographs, it cannot be concluded that the respondent is living in adultery with another man.

Consequently, holding that the trial Court rightly allowed the application moved by the wife u/S 125 of CrPC, the Court upheld the said order and dismissed the husband's plea.

Case title - RKA vs DA

Citation:

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