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The Delhi High Court has held that one or occasional acts of adultery committed in isolation do not amount to ‘living in adultery’ and hence, do not exclude a woman from maintenance after divorce.

A single bench of Justice Chandra Dhari Singh while dealing with a petition seeking to set aside the order and judgment of an Additional Principal Judge, Family Court, Tis Hazari Courts, granting the wife of the petitioner maintenance under Section 125 Code of Criminal Procedure (CrPC) after divorce.

Justice Singh said that the law, as previously interpreted by several High Courts across the country, exhibits that only continuous and repeated acts of adultery and/or cohabitation in adultery would attract rigours of the provision under Section 125(4) of the CrPC.

“The codified law and judgments of various High Courts settle the position with respect to a bar of adultery for grant of maintenance in favor of the wife. The law mandates that in order to extract the provision under Section 125(4) of the CrPC, 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',” said the court.

Court while stating the concept of ‘living in adultery’ relied on a Bombay High Court judgment in Pandurang Bakru Nathe vs. Leela Pandurang Nathe & Anr, (1997) which defined it as-

"Living in adultery is living together as husband and wife and exercising sexual rights and duties implied by such relation when legally created. Proof of occasional acts of illicit intercourse may fall short of what is intended by the expression 'living in adultery'. It suggests a man and the wife of another living continually as husband and wife. Adulterous intercourse is a condition contemplating the repetition of an extramarital relationship when opportunity offers itself. It is a condition of cohabitation in contradistinction to occasional acts. The wife forfeits her right to be maintained on proof of repeated adulterous meetings.”

Section 125 of CrPC provides for the 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, Court further noted.

Advocates Annu Narula, Vishal Singh, Ravi Kumar, and Shiva Chauhan, the counsels for the petitioner, had argued that the order passed by the Tis Hazari Court, was wrong and perverse because the judge had failed to appreciate the evidence on record and the provisions of Section 125 CrPC.

They had further argued that the woman was capable of maintaining herself and she deserted the petitioner and started living separately with another man, as wife and husband.

Counsels for the petitioner further added that the woman and her family had filed several complaints with the police and that there were several cases going on between the two as well.

Court, however, held that cruelty is not a bar in the right of a 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 respondent (wife) put a notice about the same.

“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”, said the court.

Conclusively, 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”.

Therefore, Justice Singh found no cogent reason to impede the order of the family court and dismissed the petition.

Case Title: Sh. Pradeep Kumar Sharma v. Deepika Sharma