Mandatory To Show Wife Was Living In Adultery Shortly Before Or After Moving Maintenance Plea To Disentitle Her To Relief: PH High Court

The Punjab and Haryana High Court has observed that unless it is found that at the relevant point of time, the wife was actually living in adultery, she is not disentitled to claim maintenance. The Court further opined that the material on record must indicate that the wife was living in adultery shortly before or after the petition of maintenance has been instituted.

Significantly, the bench of Justice Vivek Puri also held that a solitary act of adultery or an isolated lapse of wife, will not disentitle the wife to claim the maintenance.

The case in brief

In the instant case, the wife moved a plea under Section 125 of the Code in July 2017 seeking maintenance for herself and for three minor children from her husband (petitioner herein). The Husband resisted the petition on the score that his wife was having adulterous relationship and she had admitted this aspect in terms of a writing executed on May 19, 2005. After his right to adduce was evidence was closed in July 2019, he moved an application for additional evidence for examining a handwriting expert to prove the aforesaid writing of the wife (petitioner therein).

This application was resisted by the wife arguing that the said document was well within the knowledge of the husband and despite being given sufficient opportunity to produce evidence, he intentionally and deliberately moved the present application at a belated stage to fill up the lacuna in the case. In view of this, the application was dimissed by the Court. Challenging the same, the husband moved the instant plea.

High Court's observations

At the outset, the Court opined that although, a discretion is vested in the trial Court to act as the exigencies of justice and circumstances of the case may require to permit a party to lead additional evidence, however, the Court added, it has also to be borne in mind that such power cannot be exercised to permit any of the parties to fill up lacuna in its case.

Against this backdrop, the Court noted that since in the instant case, the petitioner-husband was well within the knowledge of the alleged writing during the filing of the maintenance plea by the wife and he had even taken an objection to the main petition to dispute the claim of the respondents for maintenance, therefore, there was no justified reason for him to now initiate the exercise of proving the writing by examining a handwriting expert after displaying inaction for a period of two years, when the case was pending in the trial Court for his evidence.

Further, regarding the allegations levelled by the husband against the wife, the Court opined that maintenance can be declined, in the event, it is proved and established that the wife is living in adultery, however, "Living in adultery" means a continued adulterous conduct and not a single or occasional lapse.

"It is not the case of the petitioner that shortly prior to the institution of the petition or subsequent thereto, the respondent no.1 is continuously living in adulterous life. The course of adulterous conduct must not be a matter of past, but must be continuing at the time of presentation of the petition. The stale alleged act of adultery is indicative of the fact that such act has been condoned and consequently, the allegation to the effect that the respondent no.1 was living in adulterous life way back in the year 2005 cannot be termed to be a circumstance, which may be significant enough to dispute the claim of the respondents to claim maintenance from the petitioner. This is also a significant circumstance which indicate that the proposed evidence is not essential to decide the controversy," the Court further remarked as it dimissed the plea of the husband.

Case title - Amit Kumar Yadav v. Suman Devi and others [CRR(F)-384-2021 (O&M)]

Case Citation: 2022 LiveLaw (PH) 267

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