The Bombay High Court has held that if allegations of adultery are proved against the wife in a marriage, she is not entitled to maintenance
Justice NW Sambre was hearing two criminal writ petitions filed by one Sanjivani Kondalkar who challenged a judgment of the Additional Sessions Judge, Sangli allowing a revision application filed by the petitioner's husband seeking cancellation of maintenance.
The petitioner and her husband Ramchandra Kondalkar got married on May 6, 1980. The couple got divorced after Ramchandra filed an application for divorce under Section 13 of the Hindu Marriage Act on grounds of adultery.
Although, the said judgment granting a decree of divorce was subjected to an appeal but it failed as delay in filing the appeal was not condoned. Thereafter, the petitioner wife moved an application for enhancement of maintenance which was allowed by the order dated August 12, 2010. Then, the Magistrate enhanced maintenance amount to Rs.500 and Rs.400 to the wife and son respectively, whereas, the application for cancellation of the maintenance filed by the husband was rejected. Finally, the revision application filed by the respondent-husband was allowed.
Advocate Mahendra Deshmukh appeared on behalf of the petitioner wife and argued that even if the petitioner is a divorcee, having regard to the provisions of Section 125(4) of CrPC, 1973 she is entitled for maintenance as she continues, to be a woman, within the meaning of Sub-section (4) of Section 125 of the Act.
Deshmukh relied on two judgements of the Supreme Court namely Vanamala vs. HM Ranganatha Bhatta reported in 1995 and Rohtas Singh vs Ramendri reported in 2000 to support his arguments.
On the other hand, respondent husband's counsel Kavyal Shah submitted that the divorce proceedings initiated by the respondent husband came to be allowed, as the allegation of adultery was proved against the petitioner wife. Thus, in view of the statutory embargo under Sub-section (4) of Section 125 of the Act, the Court below has rightly held that the petitioner is not entitled for maintenance, Shah said.
After hearing submissions from both parties, Court noted-
"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 of the Act. If the allegations of adultery are proved against such women or inspite of the husband being ready to maintain her and she refuses to cohabit the women/wife can be refused payment of maintenance."
Referring to the judgments of the Supreme Court relied upon by the petitioner's counsel, Justice Sambre said that both the judgments will be hardly of any assistance to the petitioner as both are based on identifying and recognizing the right of a woman who was divorced not on the ground of proved adultery.
Dismissing the petitions, Court noted-
"Considering the expressed embargo on the right of the Petitioner, to claim maintenance particularly, divorce was ordered on 27.4.2000 based on the allegation of adultery, the Court below has rightly held that the Petitioner-wife is not entitled for maintenance."
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