Maintenance u/s CrPC 125 Denied to Wife Living in Adultery

Sub section (4) of Section 125 CrPC

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Section 125(4), i.e sub-section (4) of Section 125 CrPC reads as follows:–

Can maintenance under section 125 of CrPC be awarded to a wife who is living in adultery?

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As can be seen from the above, women who inter alia live in adultery (“…if she is living in adultery…”) are NOT entitled to receive maintenance from their husbands according to Section 125(4) CrPC.

Is “living in adultery” identical to adultery?

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“Living in adultery” is not identical to adultery, albeit very similar. It is to be noted here that adultery does not in every case without exception amount to living in adultery. A single act of sexual cheating inter alia qualifies for the title ‘adultery’. “Living in adultery” implies a continuous course of adulterous conduct. It is thus a sub-set of adultery, while simultaneously being different from adultery simpliciter. In simple and direct language a wife’s “living in adultery” means her act of having a sexual relationship with a man other than her husband.

Is proving adultery by wife in proceedings under the Hindu Marriage Act sufficient for a husband to get a favourable order in proceedings u/s 125 CrPC?

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First of all, it is worth noting that the word “adultery” has not been used anywhere in section 13 (grounds for divorce) of the Hindu Marriage Act. Instead the expression “voluntary sexual intercourse with any person other than his or her spouse” has been used.

It may be correctly said in the light of this observation that proof of a single act of adultery (i.e. extramarital sex) is sufficient to obtain divorce under Hindu Marriage Act. Here it is not necessary to go into details of the quality of proof required.

As far as Section 125 of CrPC is concerned, the fact of the matter is that although the word “adultery” has indeed been used therein, it has been used in conjunction with the qualifier “living in”.

For the purpose of denial of maintenance u/s 125 CrPC therefore, the wife should be shown to have been living in adultery, i.e. having been in the disgraceful state of a sexual relationship with a man other than her husband. This of course is not to say that a single act of adultery is not disgraceful.

Now, the evidence concerning adultery by wife in different appropriate divorce proceedings under the Hindu Marriage Act is bound to be different. In some cases there will be a single act of adultery in the evidence, while in others there will be more than one act of adultery. In the former case it will not be possible to say on the basis of the evidence that the wife in question has been leading an adulterous life, while in the latter case(s) it will become necessary to say so. It is hence not possible to lay down any simple rule about applicability of evidence of adultery in proceedings under HMA to / in proceedings u/s 125 CrPC.

Judgments of various high courts which cover the scope for denial of maintenance pre-divorce and post-divorce in cases involving adultery

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The following High Court judgments cover the subject of denial of maintenance u/s 125 CrPC in situations where the wife in question has been found to be living in adultery, and also where the husband has obtained divorce on the grounds of adultery.

Patna High Court

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Shyamdeo Prasad vs The State of Bihar

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From the point of view of any reader except the dramatis personae, the main legal issue which was decided in Shyamdeo Prasad was whether the availability of a divorce decree in favour of a husband on grounds of adultery of his wife is sufficient in order for maintenance to be denied to the said (by now ex-) wife. Indu Prabha Singh, the first lady judge of the Patna High Court decided this question in the affirmative by striking down the order in which a lower court had granted maintenance to an adulterous wife.

Patna High Court
Equivalent Citations: 2001 Cri LJ 2818;
Shyamdeo Prasad vs State Of Bihar And Anr.
Date of Judgment: 10/04/2000
Decided by a single judge of the Patna High Court
Singh, Indu Prabha (J)

Held (in the 10th paragraph of the judgment):
“A reading of these two sub-sections (mentioned here by the presiding officer with reference to sub-sections (4) and (5) of Section 125 CrPC – MU) will clearly show that in case it is found that the wife is living in adultery she will not be entitled to any maintenance. It further appears (mentioned here by the presiding officer with reference to sub-section (5) of Section 125 CrPC – MU) that even if an order of maintenance has been passed in favour of the wife the moment it is proved that she is living in adultery the order granting maintenance has to be cancelled.”

Further Held (in the 12th paragraph of the judgment):
“In this paragraph the learned Additional Sessions Judge (Actually, the Judicial Magistrate – MU) after taking into account the evidence of the present petitioner came to the conclusion that the present opposite party no. 2 was living with Baharan Ram and was having sexual intercourse with him even since 1988 as a result of which a son was born to her. Thus, the learned court in divorce case had held that she was living in adultery. This finding has been recorded by the civil court.” (emphasis supplied)

Further Held (in the 13th paragraph of the judgment):
"In this connection my attention has been drawn to sub-section (2) of section 127 of the Code which has already been noticed above. According to this sub-section the order granting the maintenance could be cancelled in consequence of any decision of a competent civil court recording a finding that opposite party no. 2 was living in adultery with one Baharan Ram." (An error –whether typographical or otherwise– has crept into the second sentence here. A correct version would read as follows— "According to this sub-section any order granting maintenance u/s 125 CrPC should be cancelled if a competent civil court records a finding that the concerned wife has been living in adultery. In the present case opposite party no. 2 was found by to be living in adultery with one Baharan Ram." – MU)

Finally Held (in the 14th and last paragraph of the judgment):
"In the result this revision petition is allowed and the impugned order passed by the learned Additional Sessions Judge is set aside."

Andhra Pradesh High Court

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Pola Venkateswarlu vs. Pola Lakshmi Devi and Others

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A similar case was decided in 2004 by Andhra Pradesh HC.

Andhra Pradesh High Court
Pola Venkateswarlu vs. Pola Lakshmi Devi and Others
Date of Judgment: 07/10/2004
Decided by a single judge of the Andhra Pradesh High Court
Reddy, B. Seshasayana (J)

Held (in the 6th paragraph of the judgment):
“There cannot be any distinction between ex parte decree and contest decree (contested decree - MU) so long as the decree subsists in M.C.No.294 of 1994 (MC No. 294 of 1994 in Family Court Bangalore - MU). It is to be taken that the petitioner obtained divorce on the ground of the first respondent-wife living in adultery." (emphasis supplied)

Further Held (also in the 6th paragraph of the judgment):
“As per Section 125(4) of Cr.P.C., the first respondent-wife is not entitled to receive any allowance from the petitioner-husband since divorce has been granted on the ground of her living in adultery."

Madras High Court

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M. Chinna Karuppasamy vs Kanimozhi

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Madras High Court
CRL. RC (MD) No. 142 of 2012 (Madurai Bench)
M. Chinna Karuppasamy vs Kanimozhi
Date of Judgment: 16 July 2015
Decided by a single judge of the Madras High Court
S Nagamuthu (J)

The husband, petitioner in this case, had obtained divorce from the wife on the grounds of adultery, after claiming in his suit for divorce that the wife had started living with another man. It was noted by the court in paragraph no. 2 of the judgement that, "The petitioner alleged that even prior to the marriage, the respondent was living a wayward life, which she continued even after her marriage. In short, according to the petitioner, the respondent was living in adultery. On the said ground, the petitioner filed H.M.O.P. No. 571 of 2009, before the Family Court, Madurai, seeking divorce." (emphasis supplied)

Further noted (in the 5th paragraph of the judgment);
"During the pendency of the trial of the maintenance case, the Civil Court granted decree for divorce in H.M.O.P. No. 571 of 2009, on 12.03.2010." (emphasis supplied)

Held (in the 13th paragraph of the judgment):
"...even after a decree for divorce is granted, if the wife wants to retain her right to claim maintenance from her former husband, she is expected to continue to maintain the same discipline, as she was expected to maintain during her marital ties, after the snapping of the marital ties also."

Further held (in the 14th paragraph of the judgment):
"Since the man carries the obligation to maintain his divorced wife, the woman also carries the obligation not to live in relationship with another man. ...If she wants and starts to live in relationship with any other man, she may be entitled for maintenance from him and not from the former husband." (emphasis supplied)

Further held (in the 16th paragraph of the judgment):
"But, the said Judgment (viz. Rohtash Singh vs Ramendri and others (AIR 2000 SC 952)- MU) cannot be generalized so as to make it applicable to the case of a divorced wife living in adultery also. ...so far as adultery is concerned, in my considered view, the above Judgment (i.e. the same judgment, namely Rohtash Singh vs Ramendri) cannot be made applicable, because even after the decree of divorce, the divorced wife carries the obligation not to live in relationship with any other man."

Further held (in the 17th paragraph of the judgment):
"That (viz. Smt. Vanamala Vs. Shri H.M. Ranganatha Bhatta (1995 SCC (5) 299) -MU) was a case, where a decree for divorce was obtained by mutual consent under Section 13(b) of the Hindu Marriage Act, 1955. ...this Judgment is also not applicable to living in adultery by her." (emphasis supplied)

Further held (in the 18th paragraph of the judgment):
"Suppose, a decree for divorce is granted on the ground of her living in adultery, can it be said that the said disqualification of which she was suffering from all along, during the subsistence of the marriage, will cease to exist, because of the decree for divorce?. The prudent answer to this question shall be an emphatic - "No". The decree obtained by the husband for divorce on proving the adulterous life of the wife cannot give a license to her to continue to live in illicit relationship and to get her right to claim maintenance revived."

Further held (in the 22nd paragraph of the judgment):
"In view of Section 41 of the Indian Evidence Act, 1872, if once the decree for divorce is granted on the ground of adultery, such finding is relevant for deciding the issue of adultery in the present case. This Court cannot sit in an appeal over the said decree for divorce granted by the Civil court, when the same has not been challenged by the aggrieved party. There can be no difference between a decree on contest and an ex-parte decree, since, like a decree on contest, an ex-parte decree is also a decree passed on proof of the claim made by means of sufficient evidence." (emphasis supplied)

Further held (also in the 22nd paragraph of the judgment):
"In the case on hand, therefore, there can be no doubt that the decree for divorce granted by the Civil court in favour of the petitioner is sufficient proof that the respondent was living in adultery."

Further held (also in the 22nd paragraph of the judgment):
"...I hold that besides, oral evidence let in, in this case, the decree granted by the Family Court clearly goes to prove that the respondent is living in adultery and thus, she suffers from the disqualification to claim maintenance from the petitioner." (emphasis supplied)

K. Poovalagan vs. J. Aruna Devi

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Madras High Court
Crl. R.C.(MD) No.219 of 2013 (Madurai Bench)
K. Poovalagan vs J. Aruna Devi
Date of Judgment: 27 October 2015
Decided by a single judge of the Madras High Court
Mrs. Justice S. Vimala

Noted (in paragraph no. 3.1 of the judgement);
"The husband has filed a petition for divorce in HMOP No.91 of 2006 on the file of Sub-Court, Pudukottai and the said petition has been decreed on 08.10.2010, holding that the husband has clearly proved the factum of the wife living in adultery and the wife also did not enter into the box to deny the allegation. In the said petition, the husband was directed to pay a sum of Rs.1,00,000/- as permanent alimony."

Held (in the 8th paragraph of the judgment):
"Under such circumstances, as the unchallenged decree of divorce on the ground of adultery operates against the claim of the wife, this Court hold that the wife is not entitled to claim any maintenance."

Bombay High Court

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Bhagwat Pitambar Borse vs Anusayabai Bhagwat Borse

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Bombay High Court
Criminal Writ Petition No. 724 OF 2016
Bhagwat Pitambar Borse vs Anusayabai Bhagwat Borse
Date of Judgment: 08 February 2018
Mr. Justice K L Wadane

Held (in the 8th paragraph of the judgment):
"The observation of the above cited case (viz. Smt. Vanamala Vs. Shri H.M. Ranganatha Bhatta (1995 SCC (5) 299) -MU) is not applicable to the facts of the present case. In this case, it is the contention of the petitioner that the divorce was granted by the Civil Court on the ground of adultery and therefore, in view of provisions of Section 125 (4) and (5) the respondent wife is not entitled for maintenance." (emphasis supplied)

Further held (in the 18th paragraph of the judgment):
"...once the petitioner husband has established that the respondent wife was living in adultery and on that ground divorce has been granted to the petitioner, in such circumstance, it is not necessary for the present petitioner husband to prove the same thing again in different proceeding. In view of the concurrent findings, it is established that the respondent (i.e. the wife -MU) was leading adulterous life." (emphasis supplied)

Further held (in the 19th paragraph of the judgment):
"For the reasons stated above, I am of the opinion that learned Judicial Magistrate, First Class has wrongly rejected Misc. Application No. 136/2006, filed by the present petitioner under section 125(5) and section 127 of the Code of Criminal Procedure for cancellation of maintenance as well as the learned Additional Sessions Judge, Bhusawal has wrongly dismissed Criminal Revision Application No.101/2014. Therefore both the orders deserve to be set aside."

You may also wish to read an article about denial of maintenance in CrPC 125 (especially on grounds of desertion). Alternatively, you may wish to read the bare text of Chapter 9 of the CrPC.

गत लेख के अलावा आप सी.आर.पी.सी. अध्याय ९ के प्रलेख मात्र का हिंदी अनुवाद पढ़ सकते हैं।