'Living In Adultery' Means 'Continuous & Repeated' Acts of Adultery, Single Instance Won't Disentitle Wife To Maintenance: Madhya Pradesh High Court

Madhya Pradesh High Court has held that an isolated instance of adultery can't disentitle a wife to receive maintenance from her husband. To attract the rigors of Section 125(4) Cr.P.C, the wife should be 'living in adultery' through 'continuous and repeated acts of adultery,' the court made it clear.

“… 'living in adultery' means only continuous and repeated acts of adultery…. The learned trial Court has considered the whole evidence…after considering the whole evidence found that on substratum of the single instance in living adultery, the wife could not be eschewed from getting the maintenance under Section 125(4) of Cr. P.C”, the bench sitting at Indore concluded.

The single-judge bench of Justice Prem Narayan Singh mentioned that 'relevance' and 'admissibility' may seem synonymous with each other, and the finding of adultery in the divorce decree is 'relevant' in deciding the issue of maintenance as per Section 41 of the Indian Evidence Act. However, 'relevance' and 'admissibility' have varying legal implications, the court added.

“…For example, an evidence of a witness who dies prior to his cross-examination is relevant though the evidentiary value will depend upon the facts and circumstances of the case. Certainly, relevant evidence is prima facie admissible unless it is secluded for some other reasons”, the court clarified further.

The court made the above statement to put the decree of divorce obtained on the basis of adultery in perspective. According to Section 125 (4) CrPC, a wife will not be entitled to any maintenance allowance from her husband if she is living in adultery, or if she has refused to live with her husband without any sufficient cause, or if they are living separately by mutual consent.

“In this regard, the judgment Ex.D/1 is relevant for establishing the adultery against the respondent but, now the question is whether this adultery is continuous and sufficient in view of Section 125(4) of Cr.P.C”, the court went on to note in the order.

The erstwhile High Court judgments in Ashok v. Anita [2011] and Sukhdev Pakharwal v. Rekha Okhle [2018] were relied upon by the court to repeat that ' a stray act of adultery on the part of the wife does not amount to adultery within the meaning of section 125(4)' and 'at the relevant time, the wife should be living in adultery to disentitle her claim to maintenance'.

Accordingly, the court refused to exercise its revisional jurisdiction to interfere in the findings of fact made by the trial court. According to the single-judge bench, the trial court had rightly perused the evidence on record to adjudicate the maintenance amount of Rs 3,000/- each to the wife and daughter, which is not excessive.

Advocate Piyush Shrivastava appeared for the husband. Advocate Jyotsana Rathore represented the wife in the criminal revision proceedings.

Case Title: V v. R & Anr.

Case No: Criminal Revision No. 790 of 201

Citation: 2024 LiveLaw (MP) 84

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