According to law, adultery or extra-marital affair of wife is a crucial factor while deciding on interim maintenance. However, the grant or refusal of maintenance to a woman living in adultery is subjective and dependent on how a particular judge views the same.
In a recent order passed on October 16, 2024 by the Allahabad High Court, a Single Bench of Justice Manjive Shukla, emphasised that the court under Section 125 of the CrPC, has to decide the issue of alleged adultery against the wife before awarding her interim maintenance.
Case:
In April 2023, a Family Court in Uttar Pradesh had passed an order of interim maintenance of granting ₹7,000 per month in favour of the wife under Section 125 of the Cr.P.C. The husband in the matter had challenged the impugned order accusing his wife of living in adultery, and thus disentitling her from receiving interim maintenance.
The Allahabad High Court has held that once there is a categorical allegation of adultery against the wife, then the court under Section 125 of the CrPC has to decide the issue of alleged adultery against the wife before awarding interim maintenance.
Submission by Husband
Advocate Rishabh Agarwal appeared for the husband challenging the family court order in the proceedings under Section 125 of the Cr.P.C.. Agarwal stated that a categorical reply was filed mentioning that the wife was living in adultery and therefore, in view of the provisions contained under Section 125(4) Cr.P.C., she was not entitled either for interim or final maintenance.
The husband defined Section 125(4) of the Cr.P.C. which reads as follows:
No wife shall be entitled to receive an [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
Allahabad High Court
A Single Bench of Justice Manjive Shukla prima facie found that the exercise required under Section 125(4) Cr.P.C. was completely missing in the matter and without recording any finding on the issue of adultery, the impugned family court order dated 13.4.2023 had been passed awarding interim maintenance to the wife.
Justice Shukla observed thus held that once a categorical allegation of adultery was made by the husband against the wife, then the concerned court dealing with the matter under Section 125 of the Cr.P.C. must first decide the issue of adultery, and interim maintenance can be subsequently awarded only after recording a finding on that issue.
The Allahabad High Court accordingly stayed the impugned order and issued notice to the wife to file her counter affidavit against allegations levelled by her estranged husband.
VOICE FOR MEN INDIA TAKE:
- Adultery as an offence was decriminalised by Supreme Court of India in the year 2018
- However, adultery still remains a civil ground for seeking divorce
- To prove adultery is an extremely tricky task for the estranged husbands, since most form of evidences put forth could be rejected by court citing ‘breach of privacy of the wife’
- While Section 125 (4) CrPC deals with adultery as a ground to reject lifelong maintenance to a separated wife, the outcome of such cases are largely dependent on the interpretation of individual Judges
- For example, in April 2022, the Delhi High Court had ruled that ‘Occasional or isolated acts of adultery by a wife does not disentitle her from receiving maintenance from her husband’
- In October 2022, the Punjab and Haryana High Court defined ‘Living in adultery means continued adulterous conduct and not a single or occasional lapse’
- While in the same month, the Punjab and Haryana High Court in another case, had refused to grant permanent alimony to a woman who was divorced by her husband on the grounds of “adultery”
- And then in December 2021, the Delhi Hight Court passed a conflicting order stating that issue of adultery should be decided at a later stage, and not during grant of interim maintenance
- Having stated the above, the below current October 2024 Allahabad High Court order is relevant and can be used by all men in similar situations if Family Courts are not deciding on allegations of adultery before passing interim maintenance orders
- Many of our laws on paper seem to be just, however, over the years, the application of these laws favouring only the wives, has distorted the rightful means of justice for a man seeking divorce
MUST WATCH:
Adultery By Wife Cannot Be Grounds To Deny Her Child Custody | Bombay High Court | Voice For Men
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#WATCH | Can Interim Maintenance Be Granted To Estranged Wife U/s 125 CrPC "Without Deciding On Adultery Charges"?
— Voice For Men India (@voiceformenind) January 14, 2025
This is what Allahabad High Court said in its recent order | https://t.co/TunyhHdIs8#VoiceForMen pic.twitter.com/jv4EvC0rCx
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