The Madras High Court, in M.Chinna Karuppasamy Vs. Kanimozhi , has held that a divorced wife is living in ‘illicit relationship’ with man other than her former husband is disqualified from claiming maintenance from her former husband. Justice Nagamutthu further held that “The decree obtained by the husband for divorce on proving the adulterous life of the wife cannot give a license to her to continue to live in illicit relationship and to get her right to claim maintenance revived.” The court also distinguished the facts of this with earlier decisions of Supreme Court which had held that Section 125(4) of the Code of Criminal procedure does not apply to divorced wife. The Judgment reads “so far as adultery is concerned, in my considered view, the above Judgment cannot be made applicable, because even after the decree of divorce, the divorced wife carries the obligation not to live in relationship with any other man.”
In this case, Civil Court granted had decree for divorce dissolving the marriage, precisely on the ground that the wife was living in adultery. During the pendency of the said matrimonial dispute before the Family Court, wife filed petition claiming maintenance before CJM court which did not allow the petition. But she preferred revision and the District court allowed it and set aside the order of the Trial Court and directed the petitioner to pay a sum of Rs.1,000/- per month towards her maintenance. The husband then approached the High Court.
As per Section 4 of Section 125 of the Code, “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".
In Rohtash Singh Vs. Ramendri 2000 (3) SCC 180 , The Supereme Court has held that Section 125(4) is not applicable to a divorced wife. Distinguishing the present case with precedent set by Supreme Court, Madras High Court held this judgment is not applicable to the facts of the case. The court held “a divorced wife cannot live with her former husband and there is no question of her taking the consent of her former husband to live separately. That is the reason why, the Supreme Court has held that for a divorced wife sub-section (4) of Section 125 of the Code of Criminal Procedure is not applicable”, but in this case, “even after the decree of divorce, the divorced wife carries the obligation not to live in relationship with any other man.”
The court further held “if a woman lives in adultery, whose marriage is still subsisting, she is not entitled for maintenance from her husband. Suppose, a decree for divorce is granted on the ground of her living in adultery, can it be said that the said disqualification of which she was suffering from all along, during the subsistence of the marriage, will cease to exist, because of the decree for divorce?. The prudent answer to this question shall be an emphatic - "No".”
During the course of arguments it was also contended that the decree granted by the Civil Court is an ex-parte decree on the ground that the wife was living in adultery and the said ex-parte decree though binding on the parties, is not binding on the Criminal Court. But the Court held that in view of Section 41 of the Indian Evidence Act, 1872, if once the decree for divorce is granted on the ground of adultery, such finding is relevant for deciding the issue of adultery in the present case. The court also held that there can be no difference between a decree on contest and an ex-parte decree, since, like a decree on contest, an ex-parte decree is also a decree passed on proof of the claim made by means of sufficient evidence. The court observed “When once such a decree is in force, it is not possible for this Court to take a different view contrary to the decree granted by the Civil court”.
Read the Judgment here.