The Kerala High Court has held that to future maintenance to a wife who was divorced on the ground of adultery can be denied only on the ground that she is 'living in adultery'.
The bench comprising Justice AM Shaffique and Justice N. Anil Kumar, while upholding divorce granted to a husband on the ground of adultery by wife, observed that there is no pleadings to indicate that she is living in adultery to deny her maintenance.
The contention taken in this case was that 'living in adultery' means that she should continue to live in adultery despite the fact that the couple had been divorced on the ground of adultery and that a single instance pointed out by the husband and proved before Court does not mean that she continues to live in adultery.
The bench observed:
Under the Hindu Marriage Act, divorce can be granted u/s 13(1)(i) if after solemnization of the marriage, one spouse has voluntary sexual intercourse with any person other than his/her spouse. In order to obtain a divorce u/s 13(1)(i), even a single instance of voluntary sexual intercourse with another person is enough, whereas u/s 125(4), to deny the maintenance, the words used are "living in adultery".
The Court also observed that, when there is evidence in the case to prove that she was indulging in adultery, she cannot be granted past maintenance .
A single act of unchastity or a few lapses of virtue will not disentitle a wife from claiming maintenance
The High Court, in a judgment delivered recently had taken note of a dictum laid down in a 1999 judgment that a single act of unchastity or a few lapses of virtue will not disentitle a wife from claiming maintenance from her husband under Sec.125 of the Criminal Procedure Code. Justice Alexander Thomas, while setting aside aFamily Court order, had observed:"[It is contended] That the court below has not considered the effect of dictum laid down in various cases as in Sandha v. Narayanan [1999(1) KLT 688] that in order to constitute the "act of living in adultery" there should be a continuous course of conduct or living in the State of quasi-permanent union with the adulterer and that a single act of unchastity or a few lapses of virtue will not disentitle a wife from claiming maintenance from her husband under Sec.125 of the Cr.P.C. The said dictum has been also followed in various other cases as in Sheela and another v. Albert Hemson @ James [2015 (1) KLT SN 113]. It is further pointed out that there is evidence of record to show that the petitioner is living with her parents and accordingly, it is contended by the petitioner that there is no evidence whatsoever to indicate even remotely that the petitioner was continuing to live in adultery in a State of quasi-permanent union with the alleged adulterer, etc.. In the light of these aspects, this Court is of the considered opinion that the said crucial aspects has not been properly considered and adverted to by the learned Family Court."
Justice KM Shafi in Sandha v. Narayanan had made this observation:
"The phrases 'living in adultery' used in Section 125(4) of the present Cr. P.C. and in Section 488(4) of the Cr. P.C. 1898 contemplates a continuous course of conduct on the part of the wife with the adulterer or paramour as the case may be and a single act of unchastity or a few lapses from virtue will not disentitle the wife from claiming maintenance from her husband under Section 125 of the Cr. P.C."
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