Wife not barred from getting maintenance unless actively living in adultery: Madhya Pradesh High Court

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The Madhya Pradesh High Court recently held that the wife would be barred from getting maintenance on the ground of adultery only if she is living in adultery at or around the time when she files a plea seeking maintenance from her husband under Section 125 of the Code of Criminal Procedure Code (CrPC).

A bench of Justice Prakash Chandra Gupta made the observation while upholding a family court order directing a man to pay maintenance his former wife.

The man had alleged that his estranged wife had been having an affair with another man and was, therefore, not entitled to claim any maintenance in view of Section 125 (4) of the CrPC.

Section 125 (4), CrPC lays down that no wife would be entitled to receive maintenance from her husband if she is living in adultery.

The Court, however, dismissed the man’s argument after noting that there was nothing to show that his wife was living in adultery when she filed the claim for maintenance.

“It is apparent that the adultery u/S 125(4) of Cr.P.C. has to be continuous and the liability to prove the same is upon the husband in order to debar wife from getting maintenance. The 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 S. 125 of Cr.P.C,” Justice Gupta explained.

Justice Prakash Chandra Gupta
The High Court was hearing a plea moved by a man challenging a family court’s order directing him to pay ₹ 10,000 per month as maintenance to his estranged former wife under Section 125 of the CrPC.

The husband had earlier secured an ex-parte decree of divorce from his wife.

In the meanwhile, the wife filed an application seeking maintenance from her husband before a family court, where she alleged that he had subjected her to dowry harassment and physical abuse.

She also claimed that he had evicted her from their marital home and forced her to live in a rented room without any assistance.

On the contrary, the husband argued that he never demanded dowry from his wife or subject her to any harassment or cruelty. He maintained that his wife left him voluntarily without any valid reason.

Moreover, he argued that she was the aggressor in their relationship, and that she had physically assaulted him and verbally abused both him and his family members.

Additionally, the husband contended that she had engaged in inappropriate communications with another man and committed adultery.

The family court found that the wife had valid reasons to live separately from her husband and allowed her plea for maintenance.

Dissatisfied with this decision, the husband (petitioner) filed an appeal before the High Court.

At the outset, the High Court clarified that the woman, in this case, would be entitled to claim maintenance even though her husband had secured a divorce. The Court explained that the definition of “wife” under Section 125, CrPC (dealing with maintenance claims) includes a woman who has been divorced but not yet remarried.

The Court proceeded to opine that the petitioner had not produced credible evidence to support his allegation that his former wife had been adulterous.

While the petitioner referred to certain photographs of his former wife and another man, the Court noted that he did not produce an electronic certificate under Section 65B of the Indian Evidence Act to prove the authenticity of such photos.

The Court emphasized that without such a certificate, it cannot be conclusively inferred from the photographs alone that the wife had engaged in adultery with another man.

Therefore, the Court upheld the trial court order and dismissed the man’s plea.

Advocate Abhijeet Dubey represented the petitioner.

Advocate Anil Kumar Dawale represented the respondent.

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