Wife's Right To Maintenance Forfeited U/S 125(4) CrPC Only When Acts Of Adultery Are Committed Repeatedly: Delhi High Court

The Delhi High Court has reiterated that only continuous and repeated acts of adultery or cohabitation in adultery would attract the rigours of the provision under Section 125 (4) of the Code of Criminal Procedure.

Sec. 125(4) of the CrPC states that no Wife shall be entitled to receive an allowance from her husband 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.

Justice Chandra Dhari Singh also observed that law on maintenance is a welfare law that exists to ensure that the wife, children and parents of an able and capable man are not left to become destitute in cases when they themselves are not capable of maintaining themselves.

The Court was dealing with a criminal revision petition seeking setting aside of order and judgment dated 31st July, 2020 passed by the Family Court. The Court had granted the maintenance of Rs. 6000 per month from 14th February, 2012 to 28th February, 2013, Rs. 6000 per month from 1st April, 2014 to 31st December, 2015, Rs. 7000 per month from 1st January, 2016 to 31st July, 2020 and Rs. 15,000 per month from 1st August, 2020 till the life of the wife or her remarriage.

The marriage between the petitioner and the respondent wife was solemnized on 9th April, 2000. However, due to several disputes amongst the parties, several criminal and civil cases, complaints and FIRs were filed by both the parties against each other.

It was thus the case of the petitioner Learned that the impugned Order was patently wrong, perverse and hence, liable to be set aside. It was argued that the Family Court had failed to appreciate the evidence, other material on record and the provision under sec. 125 of the Cr.P.C. while passing the impugned Order.

It was submitted that the wife was abundantly capable of maintaining herself and was earning sufficient income for the purpose, and the fact of her employment during the pendency of the case was also conceded by her in her cross-examination. Since, the wife herself had sufficient means to maintain herself, it was argued that the application under sec. 125 of the Cr.P.C. was not maintainable at the first instance.

On the petitioner's allegation of adultery against the wife, it was argued by the respondent that the same was an afterthought and that there was no evidence to prove the allegation of adultery against her.

"The grant of maintenance by a husband towards his wife, children and parents is subject to the conditions laid down in the provision. With regard to maintenance to wife, it is evident that a husband must provide maintenance as awarded to wife when she is unable to maintain herself, and only if the exceptions as mentioned above are existing, can the husband escape his duty of paying maintenance," the Court observed.

The Court noted that the law emanating from various precedents of the 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.

"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 Court said.

Therefore, the Court was of the view that the ground of cruelty and harassment did not stand ground for non-payment of the maintenance amount.

The Court also added that the law mandates that in order to extract the provision under sec. 125(4) of the Cr.P.C. 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".

"Hence, it is found that the law, as interpreted by the High Courts of the Country, evinces that only continuous and repeated acts of adultery and/or cohabitation in adultery would attract the rigours of the provision under Section 125 (4) of the Cr.P.C," the Bench said.

It added "The law of maintenance of the country, including Section 125 of the Cr.P.C. are welfare laws that exist to ensure that the wife, children and parents of an able and capable man are not left to become destitute in cases when they themselves are not capable of maintaining themselves. However, the recent practice has become to abuse the process of law and escape the liability that is imposed upon the husband on contentions that hold no ground."

The Court said that the instant matter was also one such case, where the parties had indulged in several complaint and criminal cases with no consequence.

"The order of maintenance has been challenged despite there being clear mandate of law regarding all the questions led by the petitioner. In light of the mandate of law under Section 125 of the Cr.P.C., the observations of the High Courts, and facts and circumstances of the present matter, this Court is not inclined to allow the instant petition, since the petitioner has failed to show any ground for challenging the order under the revisional jurisdiction of this Court," the Court said.

Accordingly, the Court dismissed the revision petition and upheld the impugned order.

Case Title: SH PRADEEP KUMAR SHARMA v. SMT DEEPIKA SHARMA

Citation: 2022 LiveLaw (Del) 324

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