The Delhi High Court in its order dated April 13, 2022 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. Thus, the high court has allowed maintenance to wife on pretext of her ‘welfare’.
What is Section 125(4) of the CrPC?
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.
Couple got married in April 2000. However, due to many disputes amongst the husband and wife, several criminal and civil cases, complaints and FIRs were filed by both the parties against each other.
The Family Court had granted the maintenance of
- Rs 6,000 per month from February 2012 to February 2013
- Rs 6,000 per month from April 2014 to December2015
- Rs 7,000 per month from January 2016 to July 2020
- Rs 15,000 per month from August 2020 till the life of the wife or her remarriage
Allegations by Husband (Petitioner)
It was the case of the petitioner 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 Section 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 Section 125 of the Cr.P.C. was not maintainable at the first instance.
It is further submitted that while passing the impugned order and judgment the question of adultery against the respondent was wrongly appreciated. The son of the parties, Master X, by way of his affidavit of evidence very clearly and categorically stated that he along with his mother started living together with a person, Pankaj Arya, at Panchkula, Haryana since 2014 and that the Respondent and Pankaj Arya were staying together as husband and wife.
Defense by Wife (Respondent)
Learned counsel appearing on behalf of the respondent vehemently opposed the instant petition and submitted that the same is liable to be dismissed for the reason of it being devoid of any merit. It was submitted that the ground of adultery alleged by the petitioner against the respondent was an afterthought.
The ground of adultery was taken on the behest of the son of the parties, Master X, however, it is submitted that the son had been in custody of the petitioner since 2015 and if he had a reason to believe that the respondent was living in adultery, he would have brought the fact in light at the first instance, however, the same was not the case. The respondent was not even cross examined to the point of adultery. It is submitted that there was no evidence to prove the allegation of adultery against the respondent.
It was submitted that the petitioner is a commandant in BSF and his salary till the month of November 2021 is Rs 2,41,670 per month, as per the salary slip of November 2021, and now the salary of the petitioner has increased from the month of January 2022 and he is getting over Rs 2.5 lakhs per month.
Delhi High Court
Justice Chandra Dhari Singh was dealing with a criminal revision petition seeking setting aside of maintenance order and judgment dated July 31, 2020 passed by the Family Court.
The court 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 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. The court said,
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.
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.
On Denying Maintenance Based On Adultery Charges
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 court observed,
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.
Adding further the court said,
The law mandates that in order to extract the provision under Section 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”.
The bench also quoted,
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 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 court remarked,
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.
Accordingly, the Court dismissed the revision petition and upheld the impugned order.
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