Maintenance on adulterous woman
Querist :
Anonymous
(Querist) 29 September 2011
This query is : Resolved
Does Maintenance stops to divorced women, when found guilt under adultery?
R.Ramachandran
(Expert) 29 September 2011
The maintenance will not stop in the situation mentioned by you.
ajay sethi
(Expert) 29 September 2011
Vinod Kumar V/s. kaushalya, I (1996) DMc 603 Raj - It is true that if suit for divorce is decreed after trial on the ground of adultery then wife will not be entitled to get permanent alimony and maintenance u/sec 25 of HMa because adultery alleged against her is proved. But at the stage of the proceeding u/sec 24 if the HMA adultery is only alleged. There is large gap between "adultery alleged" at the stage of proceeding under section 24 of the aforesaid Act and adultery found to be proved by court trial at the stage of proceeding u/sec 25 of the said Act. (Shashi kiran - law of maintenance - page 50)
ajay sethi
(Expert) 29 September 2011
Munnibai V/s. Jagdish Rathore, 1999 (2) CCC 6 (MP) - There may be cases where the character and gravity of the conduct is such which may be found repugnant to the concept and the institution of marriage and it may be wholly unjust to ignore them while considering the question of releasing or withholding the benefit contemplated u/sec 24 of the Act, but it all depends on the facts of each case and cogent reasons have to be recorded for withholding the grant of the benefit u/sec 24 of the Act. (Shashi kiran - law of maintenance - page 54)
ajay sethi
(Expert) 29 September 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.2.2008
CORAM
THE HON’BLE MR.JUSTICE P.R.SHIVAKUMAR
Crl.R.C.No.1491 OF 2005
Marimuthu … Petitioner
vs.
Janaki … Respondent
Criminal Revision Case is filed against the order passed in M.C.No.4 of 2003 dated 2.9.2005 on the file of Judicial Magistrate No.2 of Ponneri.
For petitioner : Mr.C.R.Dhasarathan
For respondent : Mr.S.Parthasarthy
ORDER
This revision is directed against the order of the learned Judicial Magistrate No.2, Ponneri dated 2.9.2005 made in M.C.No.4 of 2003 directing the revision petitioner herein (husband) to pay maintenance to the respondent (wife) at the rate of Rs.500/- per month from the date of petition.
2. The respondent herein contending that her husband, namely the revision petitioner, neglected and failed to maintain her whereas she was not having sufficient means to maintain herself, filed the above said maintenance case praying for an order directing the revision petitioner to pay her maintenance at the rate of Rs.1,500/- per month.
3. The said petition was resisted by the revision petitioner herein on the ground that the respondent (wife) had withdrawn from the company of her husband without any justification and that subsequently there was a settlement between the parties, pursuant to which both of them mutually agreed to live separately. In order to support the defense case of the revision petitioner, he has relied on a document marked as Exhibit R.1 dated 21.10.2002.
4. The learned Judicial Magistrate No.2, Ponneri after considering the evidence both oral and documentary adduced on either side, came to the conclusion that the respondent herein (wife) was entitled to get maintenance from her husband (the revision petitioner herein), fixed the quantum of maintenance of Rs.500/- per month and passed an order directing the revision petitioner to pay such maintenance from the date of the petition filed under Section 125 Cr.P.C. before the said Magistrate.
5. Questioning the correctness and legality of the said order passed by the learned Judicial Magistrate No.2, Ponneri the present revision has been filed.
6. The learned counsel for the revision petitioner, drawing the attention of the Court to Sub Clause 4 of Section 125 Cr.P.C., contended that a wife who is living away from her husband by mutual consent between the husband and wife, would not be entitled to an order of maintenance under Section 125 Cr.P.C; that even if an order of maintenance happened to be passed under Section 125 Cr.P.C. earlier in point of time and subsequently they continued to live separately by mutual consent, Sub Section 5 provided for cancellation of such an order of maintenance and that hence, the order of the Judicial Magistrate passed in utter disregard of the said provisions and Exhibit R.1 should be held discrepant, unsustainable in law and liable to be set aside in exercise of the revisional powers of this Court.
7. On the other hand, the learned counsel for the respondent contended that the mutual consent for separate living, as found in Sub clauses 4 and 5 of Section 125 Cr.P.C., to be effective and acted upon by the Court dealing with the petition under Section 125 Cr.P.C. should have been incorporated in a decree or order of a competent Court and otherwise the same would be ineffective.
8. The short point that arises for consideration in this revision is: “whether a mutual consent between the husband and wife evidenced by a document should have been incorporated in a decree or order of a competent Court to be recognized and acted by a Court dealing with a maintenance case under Section 125 Cr.P.C.?
9. For the sake of convenience, sub Sections 4 and 5 of 125 Cr.P.C. are reproduced as hereunder:-
”(4) No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband under this section 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.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.”
10. A bare reading of the said sub Sections will make it clear that the said provisions did not require the incorporation of the mutual consent arrived between the parties for living separately in any decree or order of a competent Court to constitute a valid defense in a petition under Section 125 Cr.P.C. claiming maintenance. Therefore, this Court is not in a position to countenance the above said argument advanced by the learned counsel for the respondent (wife). As rightly pointed out by the learned counsel for the revision petitioner, the genuineness of Exhibit R.1 has not been disputed by the respondent. Of course, the said document which contains recitals to the effect that each of the parties to the said document was free to contract marriage with the person of his/her choice, the same cannot be construed to be a valid document bringing about the dissolution of marriage. However, clear recitals have been found in the said document evidencing mutual consent between the revision petitioner and the respondent to live separately. The relevant part of Exhibit R.1 is extracted hereunder:-
11. The said document was dated 21.10.2002. It clearly spells out the mutual consent of the parties to live separately. The learned Judicial Magistrate, without properly appreciating the said document and without applying the principle of law found in Sub-Section 4 of Section 125 Cr.P.C., has erroneously held that the respondent (wife) was entitled to maintenance. The said order passed by the learned Judicial Magistrate, which is against the spirit of the statute and passed in ignorance of the said statutory provision, is definitely infirm and discrepant. The non- application of the said statutory provision to the case on hand by the learned Judicial Magistrate will make his order unsustainable. This Court is satisfied that the said order has got to be set aside in exercise of the revisional powers of this Court.
12. In the result, the revision case succeeds and accordingly the same is allowed. The order of the learned Judicial Magistrate No.2, Ponneri dated 2.9.2005 passed in M.C.No.4 of 2003 is hereby set aside. M.C.No.4 of 2003 shall stand dismissed. Consequently, connected M.P.No.8952 of 2005 is closed. No costs.
R.Ramachandran
(Expert) 29 September 2011
Dear Mr. Sethi,
I have my own doubts. You may like to clarify.
Whatever the case laws cited by you relates to the period when the persons are still husband and wife. Thus, while the marriage subsists, if the wife is found guilty of 'adultery' and that forms the basis for the ground of divorce, yes, she would not be entitled to maintenance from her husband.
The question posed by the querist is slightly different in that it relates to a divorced wife, who is living in 'adultery'. Whether maintenance has to stop in her case also? I can understand that she will not get maintenance once she gets remarried. But what about 'adultery'?
R.Ramachandran
(Expert) 29 September 2011
On further analysis, the question of 'adultery' for a divorced woman would not at all arise. 'Adultery' is always related to a relationship outside the marriage, when marriage subsists.
ajay sethi
(Expert) 29 September 2011
MR Ramchandran
i have cited judgement which states where adultery has been proven and divorce garnted she cnanot be entitled to maintenance
Vinod Kumar V/s. kaushalya, I (1996) DMc 603 Raj - It is true that if suit for divorce is decreed after trial on the ground of adultery then wife will not be entitled to get permanent alimony and maintenance u/sec 25 of HMa because adultery alleged against her is proved. But at the stage of the proceeding u/sec 24 if the HMA adultery is only alleged. There is large gap between "adultery alleged" at the stage of proceeding under section 24 of the aforesaid Act and adultery found to be proved by court trial at the stage of proceeding u/sec 25 of the said Act. (Shashi kiran - law of maintenance - page 50)
R.Ramachandran
(Expert) 29 September 2011
Dear Mr. Sethi,
I fully agree with you.
What I am saying is that, if on the basis of allegation of adultery a petition for divorce is filed, and on proof of adultery the decree of divorce is granted, naturally the divorced wife will not be entitled to maintenance.
But the other question is: Once divorce takes place - not necessarily on the ground of adultery - but on some other ground like desertion, cruelty etc. etc. - then when such a divorced woman indulges in an affair, (which the querist losely calls it 'adultery'), whether the maintenance will stop? My hunch is, NO. What is your considered view on that?
ajay sethi
(Expert) 29 September 2011
Mr Ramchandran
your hunch is right maintenance wont stop
here the querust has mentioned that his ex wife has been found guilty of adultery so accordingly opined that she wont be entitled to maintenance
R.Ramachandran
(Expert) 29 September 2011
Dear Mr. Sethi,
Thank you for the clarification.
Guest
(Expert) 29 September 2011
Nice discussion.
prabhakar singh
(Expert) 29 September 2011
The SUMMARY:On which i would be agreeing whether or not one have a judgment to support!
1.If divorce is sought by the husband on the ground of ADULTERY of his wife,maintenance to her would be available during the pendency of proceedings under all short of actions she is allowed to shoot upon.
2.Any such grant can be stopped after proof of adultery and upon passing of a final decree of divorce on the ground of adultery.
3.No adultery can be imputed upon a divorced wife,where decree of divorce was passed on proof of ground other than adultery;since sexual relation of a divorcee wife after divorce can NOT fall with in definition of adultery.
Hence any maintenance awarded to such a wife who was granted maintenance on being divorced by a decree on a ground other than adultery,CAN NOT BESTOPPED,merely because she after passing of divorce and maintenance order has created sexual relation with some one else being other than her ex husband and such a relation can never come within ambit of adultery ,we use to call.
Shonee Kapoor
(Expert) 29 September 2011
Hi All,
The issue raised is twofold.
Does Maintenance stops for Women who is adultrous or living in adultery.
Under CrPC 125 or HMA 25.
CrPC 125, the maintenance won't stop unless it can be shown that the woman is living in adultery (i.e. with someone else). Many HC have noted that a single instance of adultery is not sufficient to deny maintenance under this section.
In HMA 25, Kolkatta HC has granted alimony under HMA 25 even to a woman who got divorced on the grounds of adultery, citing, that denying maintenance would push her in unchaste life to fulfill her day to day needs.
Hence just because she is adultrous is not enough to stop maintenance completely.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Shailesh Kr. Shah
(Expert) 05 October 2011
Very well explained by Shri Shonee Kapoor.
