Circumstantial Evidence Sufficient Proof Of Adultery To Defeat Wife's Maintenance Claim: Kerala High Court

Dr. Justice Kauser Edappagath, was delivering a judgment in a revision petition filed against the Family Court decision which had granted maintenance to a woman despite evidence produced by the husband alleging that she was “living in adultery.”

The counsel for the revision petitioner submitted that the order of the Family Court was illegal and unsustainable as it is against the provision of Section 125 (4) of Cr.PC, which states that no wife shall be entitled to receive an allowance for maintenance from her husband if she is living in adultery.

It was further submitted that sufficient evidence was submitted before the Family Court, which was overlooked.

Relying on T Mercy and Other v V M Varughese and State (1967 SCC OnLine Ker 95) and other decisions, the counsel for the respondent submitted that a wife is disentitled to maintenance under Section 125 of CrPC, only if the husband proves that she is living in adultery continuously, and a single or isolated instance of adulterous act is not sufficient.

The Court then examined the level of proof required to establish that the wife is living in adultery.

It noted that the right claimed by the wife under Section 125 of Cr.PC is a civil right and the maintenance proceedings under the section are civil proceedings, although the breach may lead to penal consequences.

The Court added that the standard of proof in civil matters is based on the preponderance of probabilities.

“When the husband alleges that the wife is living in adultery and thereby disqualified from claiming maintenance, he is not required to prove the adulterous act beyond a reasonable doubt, as in criminal prosecution under the now-repealed Section 497 of IPC. Instead, proof by preponderance of probabilities is sufficient.” the Court noted.

It further observed that adultery typically occurs in secrecy, which makes it difficult to make direct proof and hence can be established through circumstantial evidence, provided the circumstances lead logically to that conclusion.

The Court then examined the evidence submitted by the husband, which included testimony from a psychologist and treatment records indicating the wife admitted to an extramarital relationship, a witness claiming to have seen the wife in a compromising situation, call detail records and also the divorce proceedings by the alleged partner's spouse alleging similar conduct.

“The aforementioned circumstantial evidence are sufficient to establish the factum of 'living in adultery' on a balance of preponderance and probabilities to defeat the claim of the respondent under Section 125 of Cr.P.C.” the Court held.

The Court held that, taken cumulatively, the evidence satisfied the civil standard of proof and clearly established that the wife was “living in adultery.”

The Court thus set aside the order of Family Court for maintenance and remarked that the finding of the Family Court that there is insufficient evidence is against the settled principles of appreciation of evidence.

It thus held that the respondent is not entitled to maintenance and allowed the revision petition.

Case Title: X v Y

Citation: 2025 LiveLaw (Ker) 792

Case No: RPFC 100/ 2023

Counsel for Revision Petitioner: A Rajasimhan, Vykhari K U, Sharafudheen M K, ANas Ali M M

Counsel for Respondent: T K Rajeshkumar, Manoj V George, T N Bindhu, Abhishek, Dhanjay Deepak, Jijo Jose