In December 2019, Bombay High Court upheld an order of a lower court stating that if a woman fails to prove that all charges of adultery against her were incorrect, then she won’t be entitled to maintenance. The statement was made by high court while passing the order in a maintenance appeal.
Couple got married in 1980. However, the husband filed for divorce under section 13 of the Hindu Marriage Act, 1955 stating that his wife had cheated on him in the year 2000, and subsequently divorce was granted on grounds of adultery.
Thereafter, the wife challenged the divorce order and the husband was directed to pay maintenance to the wife and their son, by a lower court.
In 2010, the estranged couple approached the court again with different requests. The wife had appealed for enhancement of the maintenance amount, while the husband had filed a counter application in the magistrate’s court, requesting to cancel the maintenance amount. The lower court ordered in favour of the woman, granting her enhancement in the maintenance amount. The court also directed the husband to pay thrice the amount he was paying for the wife and almost eight times more for the son.
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In 2015, the man who was unhappy with the magistrate’s order, applied for a revision application which was allowed by the additional sessions judge at Sangli. The judge at the lower court in his order observed if the adultery allegation made on the woman was proven, and also the divorce had been granted as per the statutory embargo under sub-section (4) of section 125 of the Hindu Marriage Act, 1955, then, it resulted in wife ‘not entitled to maintenance’.
Bombay High Court Observations
The bench of justice Nitin W Sambre was hearing the criminal writ petition filed by the woman. The bench held that if adultery was not proved, the woman could have claimed a right to maintenance after divorce, but as that was not the case the lower court order of cancelling maintenance was valid.
The bench of Justice Sambre observed in their judgement:
If the allegations of adultery are proved against such a woman or in spite of the husband being ready to maintain her, she refuses to cohabit the wife can be refused payment of maintenance.
Considering the expressed embargo on the right of the petitioner to claim maintenance particularly, divorce was ordered on April 27, 2000, based on the allegation of adultery, the court below has rightly held that the petitioner-wife is not entitled to maintenance.
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