Divorced Wife Not Disentitled To Maintenance On Grounds That She Is Living In Adultery: Himachal Pradesh High Court

A bench of Justice Rakesh Kainthla observed this while dismissing a plea moved by a man challenging an order passed by the Additional Chief Judicial Magistrate in Shimla to issue a warrant for the attachment of immovable property after he failed to provide maintenance to his divorced wife.

The case in brief

Essentially, a decree of divorce was granted in favour of the husband in February 2007 on the grounds of adultery (allegedly committed by the wife). In January 2009, a JMFC Court in Shimla issued an interim maintenance order directing the husband to pay ₹1,000 per month to his ex-wife.

The husband challenged this order, but the learned District Judge (Forests), Shimla, dismissed his revision petition in December 2013. To enforce the maintenance order, the wife filed an application under Section 128 of the CrPC.

The husband, in response, filed an objection to the petition, arguing that the wife was not entitled to maintenance under Section 125(4) of CrPC, which disallows maintenance if the wife is living in adultery.

The husband asserted that a divorce decree was granted in his favour on the grounds of desertion, cruelty, and adultery. Thus, he prayed for the dismissal of the execution petition.

In her defence, the wife countered that she learned about the divorce only in May 2008 and though she filed an application to set aside the divorce decree but could not pursue it due to threats to her life.

Further, she categorically denied living in adultery and prayed the court to dismiss the husband's objections.

Against the backdrop of these facts, the Trial Court ruled in favour of the wife, maintaining that the interim maintenance order was valid despite the divorce decree. The court emphasized that it was obligated to execute the order unless it was varied or vacated. Consequently, a warrant of attachment was issued for the husband's immovable property.

Challenging this very order, the husband moved to the High Court, wherein his counsel argued that since the wife is living in adultery and is not entitled to maintenance given Section 125(4) of CrPC.

On the other hand, the wife's counsel argued that the decree of divorce on the ground of adultery would not disentitle the wife from claiming maintenance from her husband as Section 125(4) applies to the wives who are still married to their husbands and does not apply to the wives who have divorced.

High Court's observations

Against the backdrop of these facts, the Court, at the outset, referred to the Supreme Court's Judgment in Rohtash Singh v. Ramendri, wherein it was held that a wife wouldn't be entitled to maintenance from her husband if she is living in adultery, has refused to live with her husband, or is living separately by mutual consent; however, these conditions apply only while the matrimonial relationship is ongoing, not after divorce.

The HC noted that the top Court followed this ruling in Swapan Kumar Banerjee v. State of WB 2019, wherein it was held that a divorced woman is entitled to claim maintenance from the person to whom she was once married.

Here, it may be noted that in the Swapan Kumar case (supra), the Apex Court had specifically held that even if divorce has been granted on the grounds of desertion by the wife, this cannot be a ground to deny maintenance to the Wife.

Given this, the HC rejected the contention of the husband's counsel that a divorced wife is not entitled to maintenance if she is living in adultery.

This judgment underscores the principle that the right to maintenance is grounded in the need for financial support rather than moral judgments about the wife's personal life post-divorce.

Further, noting that the decree of divorce was granted in February 2007 and the interim maintenance was allowed in January 2009, the Court observed thus:

“…the maintenance was granted after the parties ceased to be husband and wife and the decree of divorce and the findings recorded during the divorce proceedings would not affect the maintenance claim of the divorced wife. Thus, the learned Trial Court had rightly rejected the objection that the wife was not entitled to maintenance because she was living an adulterous life.”

Consequently, the husband's petition was dismissed.

Case title - Krishan Lal vs. Champa Devi

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