Case Note & Summary
The present criminal writ petition arose from a matrimonial dispute between the petitioner-husband and his former wife, respondent No.1. The parties were married in 1987 and had a daughter. In 1991, the wife left the husband and subsequently obtained an order of maintenance under Section 125 of the Code of Criminal Procedure, 1973, in 1993. The husband paid maintenance until 1997, when he filed for divorce and obtained an ex-parte decree in 1998. The wife's belated challenge to the divorce decree was dismissed in 2006 on grounds of delay and laches. In the interregnum, the husband stopped paying maintenance. In 2006, the wife demanded maintenance as per the earlier order, prompting the husband to file an application in 2007 seeking cancellation of the maintenance order. He alleged that the wife had remarried or lived in adultery with one Rajendra, a widower with two children, from approximately 1997-98 until Rajendra's death in 2002. The husband claimed he was not liable to pay maintenance on account of remarriage. The trial court recorded evidence but refused to accept the petitioner's claim, holding that neither marriage nor cohabitation was proved. The revisional court assumed the wife had stayed with Rajendra for a few years but found insufficient evidence to prove marriage, and held the husband liable to pay maintenance. The core legal question before the High Court was whether a wife who lived in adultery after obtaining a maintenance order loses her entitlement to maintenance once she stops such living. The court observed that if a wife begins residing with another person in adultery, the husband must approach the court during that period and obtain cancellation of the maintenance order. However, after the adulterous relationship ends and the wife proves destitution, she can revive her claim. The court reasoned that Section 125 CrPC does not permanently bar a wife from maintenance merely because of past adultery; the provision is designed to prevent vagrancy and destitution. Since the wife's live-in partner died in 2002, she ceased to live in adultery, and if she was destitute, she could look to her husband for support. The court dismissed the writ petition, upholding the lower courts' orders.
Headnote
A) Criminal Procedure Code, 1973 - Maintenance under Section 125 - Effect of wife's adultery after order - Ceasing to live in adultery restores right to maintenance - Husband's remedy during adultery - The Court held that if a wife, after obtaining a maintenance order, lives in adultery but later ceases such living and proves destitution, she is entitled to resume maintenance from her husband; husband must seek cancellation during the period of adultery - Held, petition dismissed (Para 5).
Issue of Consideration
Whether a wife who stayed in adultery with another person for few years after she obtained an order under Section 125 of Cr.P.C. against her husband, is entitled to continue similar right of maintenance after she stops such living in adultery?
Final Decision
The court held that a wife who lived in adultery after obtaining a maintenance order does not permanently lose her right to maintenance. If she ceases to live in adultery and proves destitution, she can claim maintenance from her husband. The husband's remedy is to seek cancellation of the order during the period of adultery. The petition was dismissed.
Law Points
- A wife who stayed in adultery with another person for few years after obtaining a maintenance order under Section 125 CrPC is entitled to continue similar right of maintenance after she stops such living in adultery
- husband must approach the court for cancellation during period of adultery
- ceasing to live in adultery and proving destitution revives right to maintenance
- Section 125 CrPC does not prohibit such demand.
