Occasional adultery won't bar wife from maintenance: Delhi High Court

Tribune News Service

New Delhi, April 15

Holding that occasional acts of adultery committed in isolation do not amount to “living in adultery”, the Delhi High Court has said it does not disentitle a woman to get maintenance from her husband after divorce.

Definite evidence necessary

The husband has to establish with definite evidence that the wife has been living in adultery and one or occasional acts of adultery committed in isolation will not amount to ‘living in adultery’. Justice Chandra Dhari Singh

The order came on a petition filed by a man challenging a trial court directing him to pay monthly maintenance to his wife. In its order under Section 125 of the CrPC, the trial court had ordered the husband to pay the wife Rs 15,000 a month with effect from August 2020. The husband had challenged the maintenance order on the ground of cruelty, adultery and desertion on the part of the wife.

However, rejecting the husband’s plea, the HC held that only continuous and repeated acts of adultery by the wife would attract the legal exception to the grant of payment of an allowance by the husband.

Although the law of maintenance aimed to ensure that the wife, children and parents of an able and capable man were not left to become destitute, “recent practice” was to “abuse the process of law and escape the liability that is imposed upon the husband on contentions that hold no ground”, the HC said.

Maintaining that grounds of cruelty and harassment did not stand ground for non-payment of maintenance, the high court noted that “even in cases where divorce is granted on the ground of cruelty, courts have awarded permanent alimony to the wife and there is no bar of cruelty in the right of the wife to claim maintenance”. “The law emanating from various precedents of the Hon’ble Supreme Court and various high courts establishes the position of payment of maintenance holding that the ground of cruelty does not disentitle the wife of her right to maintenance,” it said.

The husband did not establish even a prima facie case against the wife and the law required the wife to be living in adultery to bar her from receiving maintenance under Section 125 of the CrPC, it said. The high court also rejected the ground of desertion.

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