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Living In Adultery A Bar To Seek Maintenance under section 125 (4) of code of Criminal Procedure, 1973

Man, whether in the role of a son, a father or a husband, has a socially embedded duty to provide for the well-being – physical as well as financial - of his elderly parents, children and wife. This duty cast upon men is a consequence of the entrenched societal belief and mindset which has prevailed over the world, and especially in India, that the husband is the bread-earner of the family, whereas the duty of the wife is limited to taking care of the household.

It is, perhaps, because of this social system that women have often been considered to be the inferior gender, as they were never afforded an equal opportunity to be educationally qualified – a privilege afforded only to men.

In order to negate the above-mentioned societal perceptions, the laws in India have been framed in such a manner that they specifically envisage the betterment of women under the wider ambit of social justice.

The makers of Constitution of India have gone a step ahead to ensure 'social justice' for women by allowing the State to make any special provision for women and children, despite the mandate of Article 15 of the Constitution of India which stipulates that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. The reason for such an exemption is the prejudice that women have been constrained to endure historically.

Introductory Glimpse
Maintenance provisions are incorporated in the Code of Criminal Procedure, 1973 and personal laws of citizens by way of public policy and are measures of social justice intended to protect weaker sections like women, children and old parents as envisaged under Article 15 (3) of Constitution of India, reinforced by the Directive Principles of State Policy enshrined in Article 39 of the Constitution of India.

The object is to compel a man blessed with sufficient means to perform the moral obligations which he owes to the society in respect of the wife, minor legitimate or illegitimate children and his parents who are unable to maintain themselves, so that they are not left beggared and destituted on the scrap heap of society and thereby driven to a life of vagrancy, immorality and crime for their subsistence.

Institution of marriage is necessary for the well being of the society. A wife is duty bound to live with the husband who has the corresponding duty to protect and maintain her. Manu enjoins a Hindu husband to provide maintenance of his wife, even while going abroad. Amongst the seven steps 'Sptapadi' in a traditional Hindu marriage, the first four steps are food, strength, wealth and prosperity (comfort).

The measures for maintenance by themselves are social in character. Those aim at avoiding immorality and destitution. Maintenance for judicial purposes has its pragmatics having relation to the need and necessity to make for person's provisions for securing reasonable bio-economic as well as bio-cultural requirements such as shelter, food, garment and health. Further, whenever issues of maintenance arise, they raise an intensely human problem.

Scheme Of Provisions Of Maintenance Under Code of Criminal Procedure & Personal Laws

General provisions as to maintenance are inserted in Chapter IX of the Code of Criminal Procedure, 1973, whereas, specific provisions of maintenance in respect of Hindus including Buddhists, Jains or Sikhs are statutorily enumerated in various sections of the Hindu Marriage Act, 1955 and Hindu Adoptions and Maintenance Act, 1956.

Similarly, Muslim Personal Law and recently enacted:
The Muslim Women (Protection of Rights on Divorce) Act, 1986 envisage provisions regarding obligation to pay maintenance to destituted wife, children and other relations.

The provisions of the Code of Criminal Procedure was intended to provide for summary, speedy and cheap remedy of a limited nature to wives and other dependants. These provisions create statutory rights independent of personal law, a right which cannot be enforced in a Civil Court. This rights and remedy do not take away any right which the wife has under the common law or personal law or other statutes.

Section 125 of Code of Criminal Procedure is apparently designed to prevent destitution and to provide speedy and summary relief to destitute wives and children. It has nothing to do with the right of Consortium and Connubium but is concerned with plain Board and Bed. It is also apparent that the right to claim maintenance under Section 125 Cr. P. C is not dependent on the right to claim maintenance under personal law of the parties.

It is further clear that Section 125 Cr. P. C is not meant to substitute the personal law of the parties. On the other hand, an order made under Section 1265 Cr. P. C is always subject to the adjudication of the rights of the parties by a competent Civil Court. That is provided by Section 127 (2) of the Code of Criminal Procedure.

The scheme of the provisions embodied in Chapter IX of the Code of Criminal Procedure comprising of Sections 125 to 128 which constitute Code in itself requires to be comprehended. It deals with three questions viz,:

  1. Adjudication as regards the liability to pay monthly allowance to the neglected wife and child etc.;
  2. The execution of the order on recovery of monthly allowance; and
  3. The mode of execution of an order for monthly allowance.

The Overriding Importance Of Section 125 Of The Code Of Criminal Procedure, 1973:

Section 125 of the Code of Criminal Procedure, 1973 is one such exempting provision in favour of women, which casts upon a man a fundamental duty to financially support his wife in the event she is unable to maintain herself. It is well settled through various judicial pronouncements, that the criteria required to be fulfilled for availing maintenance under this provision is that the woman must be incapable of sustaining herself from the financial resources she currently possesses.

Contentions of the husband such as, inter alia, his own limited means or other dependents of the family under his care, have been held by the judiciary to be mere bald excuses holding no weight in the eyes of law. The law is essentially sacrosanct on this aspect: if the husband is capable of earning and is able-bodied, there is no plausible reason for him to escape his financial liabilities towards his wife (and children).

The husband has the obligation to maintain wife and the children as the law requires. For the purpose of fixation of quantum the status of the person as well as the status of the claimant are to be taken into consideration. A neglected wife has to sustain herself. The minor children are to be looked after. A wife has to be treated with dignity as she does not play a subsidiary role in the life of a man.

The relationship is beyond physical bondage and is in the arena of subtler and final mental stream. A neglected wife cannot be expected to live like a church mouse. In the days of yore a wife was neglected as an epitome of the cementing factor in the domestic life and an embodiment of sacrificing synthesis in social fabric. She was regarded as a symbol of virtue, an emblem of Olympian Calmness and an embodiment of Himalayan poise. This being the position of wife , it is undesirable to conceive that she would live in distress because of the neglect of husband.

In the Appeal (Crl.) 1627 of 2007 titled Chaturbhuj v/s Sitabai, decided on 27th November, 2007, the Hon'ble Supreme Court of India has observed as under:
7. But there is an inseparable condition which has also to be satisfied that the wife was unable to maintain herself. These two conditions are in addition to the requirement that the husband must have neglected or refused to maintain his wife.

It is has to be established that the wife was unable to maintain herself. The appellant has placed material to show that the respondent-wife was earning some income. That is not sufficient to rule out application of Section 125 Cr. P. C. It has to be established that with the amount she earned the respondent-wife was able to maintain herself.

8.............Where the personal income of the wife is insufficient she can claim maintenance under Section 125 Cr. P. C. The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her husband. In Bhagwan v/s Kamla Devi, AIR 1975 SC 83, it was observed that the wife should be in a position to maintain standard of living which is neither luxurious nor penurious but what is consistent with status of a family. The expression 'unable to maintain herself' does not mean that the wife must be absolutely destitute before she can apply for maintenance under Section 125 Cr. P. C.

Further the Supreme Court in Criminal Appeal NOS.564-565 OF 2015 [Arising out of SLP (Crl.) Nos. 6380-6381 of 2014]titled Shamima Farooqui v/s Shahid Khan, decided on 6 April, 2015 held as under:
15.........A woman, who is constrained to leave the marital home, should not be allowed to feel that she has fallen from grace and move hither and thither arranging for sustenance. As per law, she is entitled to lead a life in the similar manner as she would have lived in the house of her husband. And that is where the status and strata of the husband comes into play and that is where the legal obligation of the husband becomes a prominent one.

As long as the wife is held entitled to grant of maintenance within the parameters of Section 125 Cr. P. C, it has to be adequate so that she can live with dignity as she would have lived in her matrimonial home. She cannot be compelled to become a destitute or a beggar. There can be no shadow of doubt that an order under Section 125 Cr. P. C can be passed if a person despite having sufficient means neglects or refuses to maintain the wife.

Sometimes, a plea is advanced by the husband that he does not have the means to pay, for he does not have a job or his business is not doing well. These are only bald excuses and, in fact, they have no acceptability in law. If the husband is healthy, able bodied and is in a position to support himself, he is under the legal obligation to support his wife, for wife's right to receive maintenance under Section 125 Cr. P. C, unless disqualified, is an absolute right.

The Exceptions Under Sub-Section 4 To The Grant Of Maintenance Under Section 125 Of The Code:

The above mentioned judicial pronouncements clearly emphasise the overriding importance and gravity of a statute such as Section 125 of the Code; as seen above, there are virtually no excuses or reasons given by the husband for refusing to maintain his wife / children, which are acceptable to the Courts.

However, perhaps the framers of this legislation sensed that this provision would be excessively onerous for men, for they also imposed a rider on the grant of maintenance to the woman under this section, in the form of sub-section 4 of Section 125 of the Code. Sub-section 4 of section 125 of the Code protects him from maintaining his wife, or bearing her litigation expenses, as the case may be, if the wife is living in adultery, is refusing to live with him without sufficient reason, or is living separately from him by mutual consent.

In light of sub-section 4 of Section 125, it now becomes essential to evaluate the nature and extent of the action(s) of the wife which may preclude her from claiming maintenance from her husband under Section 125 of the Code, by considering the following questions:

  1. Firstly, will just a single, solitary and isolated instance of adultery be enough to disqualify a woman from her rights under Section 125 of the Code?
  2. Secondly, will the extenuating circumstances surrounding her living in adultery/adulterous actions be relevant and ought to be considered while allowing or dismissing her petition for maintenance in light of section 125 (4) of the Code?

The expression, living in adultery deserve special notice. Living in adultery means an outrageous adulterous conduct when the wife lives in a quasi-permanent union with a person outside the wedlock. [Kasthuri Vs. Ramaswamy, 1979 Cri. L. J 7411]. The expression living in adultery postulates that there should be proof of adulterous living shortly before or after the petition for maintenance filed by the wife. Adultery is the breach of matrimonial ties.

So, it is clear that an adulterous act is not a sporadic act. It is only been when the wife adopts as a way of life it is living in adultery by the wife. Therefore, the expression living in adultery used in Section 125 (4), Code of Criminal Procedure contemplates a continuous course of conduct on the part of the wife with the adulterer and a single act of unchastity or a few lapses from virtue will not disentitle the wife from claiming the maintenance from the husband under Section 125, Code of Criminal Procedure.

A Single, Solitary And Isolated Instance Of Adultery, Whether Sufficient Do Disqualify A Woman From Her Rights Under Section 125 Of The Code:

Adultery referred to in sub-section (4) of Section 125 Cr. P. C to disentitle a wife from claiming maintenance from her husband does not imply an occasional lapse or a past misconduct. It is existing and habitual adultery. The provisions do not refer to an act of adultery and exvitermini neither a single act nor isolated acts adultery would suffice, but the type of adultery contemplated to attract the provision of sub-section (4) of Section 125 of the Code of Criminal Procedure is of the nature of a continual or recurring lapse.

It has to be repetitive or habitual. An adulterous intercourse is a condition contemplating repetition of extra martial relationship when opportunity offers. It is a condition of cohabitation in contradiction to occasional acts.
The expression 'living in adultery' was considered by Madras High Court in [Bilawati Pegu v/s Phukan Pegu, 1988 Cri. L. J NOC 30] holding to mean an outright adulterous conduct where the wife lives in quasi permanent union with the man whom she is committing adultery.

This interpretation 'living in adultery' was adopted by the Hon'ble High Court of Gujarat in [Giraben Sandipbhai Jotangiya & Ors. v/s State of Gujarat & Ors, decided on 4th August, 2015, holding that a continuous adulterous relationship on the part of the wife is a vital requirement for her to be disentitled to claim maintenance from her husband under section 125 of the Code. The Hon'ble Court, while delivering a detailed judgment, has also relied upon the observations of various courts from different parts of the country to the effect that a continuing adulterous relationship on the part of the wife is one of the fundamental requirements for her to be disqualified from claiming maintenance from her husband by virtue of section 125 (4) of the Code.

The relevant portion of this judgment is as under:
10. … The expression living in adultery has been discussed and decided by the Court to how that this connotes a course of adulterous conduct more or less continuous. An occasional lapse would not be a sufficient reason for refusing maintenance within the ambit of Subsection (4) of Section 125 of Code.

11. … The Orissa High Court has also held that there must be clear proof of adultery and a suspicion nurtured by the husband will not disentitle the wife to receive the maintenance under the Code 12 (a) Reference is made of the decision of the Madras High Court of Kasturi Vs. Ramaswamy, reported in 1979 Cr. L. J 741, wherein it is held and observed that living in adultery means outright adulterous conduct on the part of the wife and stray act of illicit relationship will not amount to living in adultery.

The Extenuating Circumstances Surrounding The Wife's Living In Adultery / Adulterous Actions, Whether Relevant For Adjudicating Her Petition For Maintenance In Light Of Section 125(4) Of The Code?

It would be profitable to reproduce sub-section (4) of Section 125 of the Code of Criminal Procedure, 1973 as under:
No wife should be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceedings, 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.

The words without any sufficient reason in the above-mentioned provision open the door for scrutiny and debate on which circumstances constitute sufficient reasons for justifying, or at least condoning, the wife's refusal to live with her husband as his wife, irrespective of whether they are staying under the same roof or not, for the purpose of granting her maintenance under Section 125 of the Code.

The Hon'ble High Court of Delhi in its judgment titled [Pradeep Pant & Anr Vs Govt Of NCT Delhi], which has relied upon the judgment of the Hon'ble Supreme Court of India titled [Sureshta Devi v/s Om Prakash (1991) 2 SCC 25] has clarified the concept of a couple living separately as under:
9..........The expression living separately, connotes to our mind not living like husband and wife. It has no reference to the place of living. The parties may live under the same roof by force of circumstances, and yet they may not be living as husband and wife. The parties may be living in different houses and yet they could live as husband and wife. What seems to be necessary is that they have no desire to perform marital obligations and with that mental attitude they have been living separately for a period of one year immediately preceding the presentation of the petition.

Sub-section (4) of Section 125 of the Code of Criminal Procedure, 1973 specifically limits the rights of maintenance of wives only to those wives who are not living in adultery. The essence of contents of this sub-section is that no wife shall be entitled to receive maintenance allowance from her husband under Section 125 (1) of the Code of Criminal Procedure if she is living in adultery.

This provision shows that rights of the wife to claim maintenance is not absolute right but is qualified one subject to her fulfilment of certain condition of not living in adultery is one of them. In the words of their Lordship of Supreme Court, as expressed in [Subanu alias Banu Vs A. M. Abdul Gafoor, 1987 Cri. L. J 980] this sub-section (4) provides that a wife shall not be entitled to receive maintenance from her husband if she is living in adultery or if without sufficient reason she refuses to live with her husband or she lives separately by mutual consent.

The expression 'living in adultery' in Section 125 (4) of Code of Criminal Procedure, 1973 has to be a continuous course of adulterous conduct and stray instances of departure from virtue would not be sufficient to deny maintenance to wife. The fact that wife is living in adultery has to be established by the husband. In quasi-criminal proceedings, the standard of proof would be preponderance of evidence.

Marriage is a phenomenal event of life by which wife is clasped with love and affections by husband. As on today, various revolutions, social vicissitudes, global formulae have directly changed the equation making it a universally standard norms that after marriage a wife is to be maintained by her husband.

The flow of life with sufficient and adequate facilitation moving around the unavoidable needs and their supplement make marital conjugations happy and pleasant and accordingly other ventures of life can be pursued.

The right to life is the prominent desiderata to and criteria to establish the due for a human being. Law of maintenance is personal as well as legal in character and arises from the very existence of relationship between the parties. Law of maintenance with no doubts is inclined toward woman in both structures whether it is Hindu or Muslim law. As per the above mentioned sections and the facts and the circumstances referred it states that a husband cannot be made liable to pay alimony if the wife’s adultery is proved in the Court of Law.

Written By: Dinesh Singh Chauhan, Advocate - High Court of Judicature, Jammu.
Email: [email protected], [email protected]  

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