Circumstantial evidence enough to prove adultery in maintenance cases: Kerala High Court

The Kerala High Court recently held that adultery in a marital relationship can be proved with circumstantial evidence during proceedings related to maintenance.

Justice Kauser Edappagath noted that the claim and proceedings for maintenance under Section 125 of the Code of Criminal Procedure (CrPC) are civil in nature. Therefore, the spouse making the allegation of adultery need only provide circumstantial evidence that logically leads to the conclusion of adulterous behaviour.

"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he is not required to prove the adulterous act beyond a reasonable doubt, as in criminal prosecution under the now-repealed Section 497 of IPC.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. Adultery typically occurs in secrecy, making direct proof rare. Consequently, adultery can often be established through circumstantial evidence, provided the circumstances lead logically to that conclusion," the Court stated.

The Court passed the judgment on a petition moved by a man challenging the decision of a family court which had ordered him to pay maintenance to his wife from whom he is divorced.

The petitioner-husband opposed the family court order primarily on the ground that the wife was not entitled to maintenance as she was living in adultery. However, the family court did not accept this argument and ordered him to pay ₹7,500 per month to his ex-wife.

Before the High Court, the counsel for the husband submitted that as per Section 125(4) CrPC, no wife shall be entitled to receive an allowance for maintenance from her husband if she is living in adultery. They also argued that he had provided sufficient evidence to prove that she was living in adultery.

However, the counsel for the wife contended that a wife is disentitled to maintenance under Section 125, only if the husband proves that she is living in adultery continuously; a single or isolated instance of adulterous act is not sufficient. In this case, there was no evidence to show that the wife was continuously living in adultery, it was argued.

The Court noted that the precedents cited by the husband established that there needs to be proof of continuous adulterous behaviour. Therefore, the question now would be regarding the level of proof required to establish that the wife is living in adultery, the Court said.

Since the proceedings for maintenance are civil proceedings, the court concluded that proof by circumstantial evidence is enough to establish adultery.

"Whether a woman is living in adultery or not cannot be determined on a numerical basis. The matter is to be looked into holistically," the Court said.

In this case, the Court noted that the psychologist who once treated the wife had clearly recorded several times that the wife was having an affair with another man. The treatment records also showed that the wife tended to have extramarital relationships. The man with whom the wife allegedly had the affair was also in the midst of divorce proceedings. This fact, coupled with treatment records and testimonies given by other witnesses, convinced the court that there was enough evidence to establish habitual adulterous behaviour.

"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 finding of the Family Court that the evidence on record is insufficient to prove that the respondent is living in adultery is against the settled principles of appreciation of evidence," the Court concluded.

The Court, therefore, set aside the family court order and held that the wife was not entitled to maintenance.

The petitioner-husband was represented by advocates A Rajasimhan, Vykhari KU, Sharafudheen MK, and Anas Ali MM.

The respondent-wife was represented by advocates RK Rajeshkumar, Manoj V George, TN Bindu, Abhishek, Dhananjay Deepak and Jijo Jose.

[Read Judgment]