Case Note & Summary
The petitioners, Laxmi Dnyanadeo Netke (wife) and her minor son Vikas Dnyanadeo Netke, challenged the common order dated 17.7.2014 passed by the Family Court, Solapur in Petition No.E-05/2012 and E-313/2012. By the impugned order, the Family Court rejected the wife's application for enhancement of maintenance from Rs.575/- per month and allowed the husband's application for cancellation of maintenance. The sole ground for cancellation was that the wife was living in adultery. The Family Court relied on a divorce decree dated 21.12.2006 in H.M.P. No.21/2004, which had granted divorce on the ground of adultery, and the testimony of one Gautam Pawar, who claimed to have seen the wife in a compromising position. The wife contended that she had appealed against the divorce decree and the appeal was allowed, but the Family Court held that since she did not produce a copy of the appellate judgment, her argument could not be accepted. The High Court found that the Family Court erred in relying on the divorce decree without considering that it was under challenge and that the wife had stated on oath that she had filed an appeal which was allowed. The High Court also held that the evidence of Gautam Pawar was not sufficient to prove adultery at the time of the maintenance claim. The court noted that the husband was a government servant earning Rs.25,000/- per month, while the wife was unable to maintain herself and the son was studying. The High Court set aside the impugned order, restored the maintenance, and enhanced it to Rs.2,000/- per month for the wife and Rs.1,500/- per month for the son from the date of the application.
Headnote
A) Family Law - Maintenance - Cancellation of Maintenance - Section 125 CrPC - The Family Court cancelled maintenance awarded to wife at Rs.575/- per month on ground of adultery, relying on a divorce decree dated 21.12.2006 in H.M.P. No.21/2004 and testimony of witness Gautam Pawar. The High Court held that the divorce decree was subject to appeal which was allowed, and the trial court erred in not considering that the wife had challenged the decree. Moreover, the evidence of Gautam Pawar was not sufficient to prove adultery at the relevant time. The court restored maintenance and directed enhancement considering husband's income. (Paras 3-8) B) Family Law - Maintenance - Enhancement of Maintenance - Section 125 CrPC - The wife sought enhancement of maintenance from Rs.575/- to Rs.3,000/- per month. The High Court held that the husband, being a government servant earning Rs.25,000/- per month, is liable to pay maintenance of Rs.2,000/- per month to the wife and Rs.1,500/- per month to the son, considering the wife's inability to maintain herself and the son's education expenses. (Paras 7-8) C) Evidence - Adultery - Proof - Standard of Proof - The court held that adultery must be proved by cogent and reliable evidence in maintenance proceedings. Mere testimony of a witness claiming to have seen the wife in a compromising position, without corroboration, is insufficient to cancel maintenance. The trial court's reliance on a divorce decree that was under challenge was erroneous. (Paras 4-6)
Issue of Consideration
Whether the Family Court was justified in cancelling the maintenance awarded to the wife and rejecting her application for enhancement solely on the ground that she was living in adultery, based on a divorce decree and testimony of a witness.
Final Decision
The impugned order dated 17.7.2014 is set aside. The application for cancellation of maintenance filed by the respondent husband is dismissed. The application for enhancement of maintenance filed by the petitioners is allowed. The respondent husband is directed to pay maintenance of Rs.2,000/- per month to the wife and Rs.1,500/- per month to the son from the date of the application.
Law Points
- Maintenance cannot be cancelled solely on basis of past divorce decree on ground of adultery without proof of adultery at the time of maintenance claim
- Adultery must be proved by cogent evidence in maintenance proceedings
- Section 125 CrPC does not bar maintenance to adulterous wife if she is unable to maintain herself
- Family Court must consider independent evidence and not rely on earlier judgment without proof of finality
