Will Single Act Of Unchastity Disentitle Wife From Claiming Maintenance? Kerala HC Asks Family Court To Reconsider Wife's Plea [Read Order]

Justice Alexander Thomas set aside the order of a family court which had dismissed the plea of a woman seeking maintenance on the ground that she was living in adultery.

The Family Court has been directed to consider the applicability of the dictum in Sandha v. Narayanan [1999(1) KLT 688] wherein it was held that in order to constitute the "act of living in adultery" there should be a continuous course of conduct or living in the State of quasi-permanent union with the adulterer.

Before the Court, it was contended  that there has been no ocular or documentary evidence adduced by the husband to prove such adultery and that even assuming that his version was accepted, it has only referred to a single instance of unchastity or lapse. The bench observed:

"[It is contended] That the court below has not considered the effect of dictum laid down in various cases as in Sandha v. Narayanan [1999(1) KLT 688] that in order to constitute the "act of living in adultery" there should be a continuous course of conduct or living in the State of quasi-permanent union with the adulterer and that a single act of unchastity or a few lapses of virtue will not disentitle a wife from claiming maintenance from her husband under Sec.125 of the Cr.P.C. The said dictum has been also followed in various other cases as in Sheela and another v. Albert Hemson @ James [2015 (1) KLT SN 113]. It is further pointed out that there is evidence of record to show that the petitioner is living with her parents and accordingly, it is contended by the petitioner that there is no evidence whatsoever to indicate even remotely that the petitioner was continuing to live in adultery in a State of quasi-permanent union with the alleged adulterer, etc.. In the light of these aspects, this Court is of the considered opinion that the said crucial aspects has not been properly considered and adverted to by the learned Family Court."

Justice KM Shafi in Sandha v. Narayanan had made this observation:

"The phrases 'living in adultery' used in Section 125(4) of the present Cr. P.C. and in Section 488(4) of the Cr. P.C. 1898 contemplates a continuous course of conduct on the part of the wife with the adulterer or paramour as the case may be and a single act of unchastity or a few lapses from virtue will not disentitle the wife from claiming maintenance from her husband under Section 125 of the Cr. P.C."

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