Occasional acts of adultery committed in isolation do not disentitle woman from maintenance: Delhi High Court

The Delhi High Court has held that one or occasional acts of adultery committed in isolation does not amount to “living in adultery” and, therefore, does not disentitle a woman from maintenance after divorce [Sh Pradeep Kumar Sharma v Smt Deepika Sharma]..Justice Chandra Dhari Singh said that the law, as previously interpreted by several High Courts across the country, evinces that only continuous and repeated acts of adultery and/or cohabitation in adultery would attract the rigours of the provision under Section 125 (4) of the Code of Criminal Procedure (CrPC).“The codified law and judgments of various High Courts settle the position with respect to bar of adultery for grant of maintenance in favour of the wife. The law mandates that in order to extract the provision under Section 125(4) of the Cr.P.C. the husband has to establish with definite evidence that the wife has been living in adultery, and one or occasion acts of adultery committed in isolation would not amount to 'living in adultery',” Court said..Section 125 of CrPC provides for maintenance of wives, children and parents. However, it says that if any wife is living in adultery, is separated, or if she refuses to live with her husband without any sufficient reason, then she is not entitled to any maintenance from her husband..The Court was dealing with a petition seeking setting aside of the order and judgment of an Additional Principal Judge, Family Court, Tis Hazari Courts, which granted the wife of the petitioner a maintenance under Section 125 CrPC after divorce.The petition argued that the order passed was wrong and perverse because the judge had failed to appreciate the evidence on record and the provisions of Section 125 CrPc.It was argued that the woman was capable of maintaining herself, she deserted the petitioner and started living separately with another man as wife and husband. The Court was also told that the woman and her family had filed several complaints with the police against the petitioner and his family and that there were several cases going on between the two as well.The order of maintenance was, therefore, challenged on grounds of cruelty, adultery and desertion as well as the fact that the woman was capable of maintaining herself..The High Court, however, held that cruelty is not a bar in the right of wife to claim maintenance and that the law emanating from precedents of Supreme Court and High Courts has established the position that the ground of cruelty does not disentitle a wife of her right to maintenance because even in cases where divorce is granted on the ground of cruelty, courts have awarded permanent alimony to the wife.On the issue of adultery, Justice Singh noted that it was not the case of the petitioner that his wife was living in adultery and that this ground was neither added to his pleadings nor was the respondents (wife) put notice about the same.The court said that the factum of adultery was brought into light by the son of the couple. But the child’s statements failed to establish that the woman was living in adultery and therefore the grounds taken by the petitioner did not establish, even prima facie, that his wife was indeed living in adultery..In his conclusion, Justice Singh observed that the law of maintenance are welfare laws that ensure that wife, children and parents are not left to become destitute but it has become a recent practice to escape the liability that is imposed upon a husband through contentions that hold no ground.“The law of maintenance of the country, including Section 125 of the Cr.P.C. are welfare laws that exist to ensure that the wife, children and parents of an able and capable man are not left to become destitute in cases when they themselves are not capable of maintaining themselves. However, the recent practice has become to abuse the process of law and escape the liability that is imposed upon the husband on contentions that hold no ground.”.Therefore, Justice Singh found no reason to interfere with the order of the family court and dismissed the petition.While advocates Annu Narula, Vishal Singh, Ravi Kumar and Shiva Chauhan appeared for the petitioner, the respondent was represented by advocate M Shamikh..[Read Judgment]