M. Chinna Karuppasamy v. Kanimozhi is an interesting case as it poses the
question of whether a woman, against whom a decree for divorce under the charge
of adultery has been passed, is entitled to maintenance under Section 125 of the
Code of Criminal Procedure.
Before The Madurai Bench Of Madras High Court - Coram: The Honourable Mr.Justice
S.Nagamuthu - Crl.RC.(Md)No.142 Of 2012 - Dated: 16.07.2015
Brief Overview of the Case
The respondent is the divorced wife of the petitioner. The marriage had taken
place under Hindu customs on the 1st of February in 1998. They had children out
of their marriage as well. However, due to some misunderstandings between the
two their marriage broke up and the petitioner then filed for an ex-parte
divorce before a Family Court in 2009 on the grounds that the respondent was
living in adultery.
The respondent was alleged to be having extra marital
affairs during the marriage and to be in continuance of it. While the matter was
pending in the Family Court the respondent filed a claim for a monthly
maintenance of Rs. 2500 before the Chief Judicial Magistrate under Section 125
of the Code of Criminal Procedure.
The respondent argued that the petitioner wanted her consent to marry her
sisterís daughter and upon refusal she was harassed and eventually thrown out of
the matrimonial home. She further denied the claims of her adulterous
relationship and claimed for a monthly maintenance of Rs.2500 as the petitioner
earned a monthly salary of Rs.15000.
While the maintenance case was pending in
front of the Chief Judicial Magistrate, the Family Court granted the divorce.
The Trial Court had dismissed the claim for maintenance however the Principal
District and Sessions Court directed the petitioner to pay a monthly sum of
Rs.1000. This then came in front of the Madras High Court as a Criminal Revision
In this case in front of the High Court, the foremost contention made by the
counsel for the petitioner was that once a decree for divorce had been granted
on the ground of the wife living an adulterous life then under Section 125
sub-section 4 of the Code of Criminal Procedure she loses the right to claim
maintenance. It is claimed that the definition of the term adultery in the
said section is applicable to widows as well.
The counsel for the respondent argued that a woman should be able to choose her
own way of sexual life and that the term adultery under Section 125
sub-section 4 of the Criminal Procedure Code is only applicable to women whose
marriage is still in subsistence.
The judgment was delivered on the 16th of July in 2015 and the Court held that a
divorced wife who lives in adultery is disqualified from claiming maintenance
under Section 125 of the Code of Criminal Procedure. They also held that this
also applies to a wife who lives an adulterous life during the subsistence of
The Full Bench held that the term adultery as given under Section 125
sub-section 4 of the Criminal Procedure Code should be given a liberal
interpretation than its ordinary sense: it should include a married woman having
sexual relations with a man other than her husband.
Even the definition of wife
should not be confined to wives whose
marriages are still in subsistence. If the wife wants to retain her right to
claim maintenance then she is expected to maintain the same discipline she was
expected to maintain during her marital ties even after the marriage has ended.
If the wife continues to maintain the same discipline even after marriage then
she is entitled to claim for compensation however if she commits a breach to the
said obligation and starts living an adulterous life then she loses the right to
claim for maintenance
The entire objective of introducing Chapter IX of the Criminal Procedure Code
was for the wife, children and parents to receive monetary compensation to
rescue them from the treacheries of destitution. A wife is entitled to
maintenance, from the husband, after a divorce so that she does not end in
destitution. However, if she commits a breach and starts living, in an
adulterous relationship, with another man then she is disqualified from claiming
maintenance under Section 125 sub-section 4 of the said Act. She may be entitled
maintenance from the man she started the adulterous relationship in but she
cannot claim it from her former husband.
The Family Court had granted the divorce on the ground of adultery and such
finding has not been challenged by the respondent. Under Section 41 of the
Indian Evidence Act, 1872 once the decree for divorce was granted on the ground
of adultery, the Court does not need to decide on the issue of whether adultery
was present in the current case or not. Hence, in the present case the Family
Court has proved that the respondent was living in an adulterous relationship
during the time of her marriage and this, she is disqualified from claiming
maintenance from the petitioner.
Analysis of the Judgment
The question that arose before the Madras High Court was whether a claim of
maintenance under Section 125 of the Criminal Procedure Code can be filed by a
woman against whom a decree for divorce had been passed on the ground of
According to Section 125 of the Criminal Procedure Code wives, children and
parents can ask for maintenance from the husband/father/son who is in the
financial condition to sustain his living. The fundamental inherent principle
behind Section 125 is the amelioration of the people from
destitution. Section 125 ensures social justice as it provides a speedy
remedy and falls within the ambit of Article 15(3) reinforced by Article 39 of
the Constitution of India. However, the Magistrate has the power to make an
order under Section 125 sub-section 4 and refuse the compensation claim.
sub-section reads as follow:
No Wife shall be entitled to receive an allowance 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
The High Court included divorced women under the term wife in this Section. As
no definition of adultery has been specified apart from that under Section 497
of the Indian Penal Code the High Court decided to give it a liberal
interpretation and also include a married woman having a sexual relation with a
man other than her husband. In the end the claim of the petitioner for
maintenance was rejected.
Two things should be noted from the judgment the Court has made.
The High Court included divorced wives under the ambit of the term wife
Section 125 sub-section 4.
The expression wife in sub-section 4 of Section 125 does not have the extended
meaning of including a woman who has been divorced. This is for the obvious
reason that unless there is a relationship of husband and wife there can be no
question of a divorcee woman living in adultery.
The High Court did consider the past Supreme Court judgments and concluded the
opposite of those judgments. The Court has said that the wife has to maintain
the same discipline that she would have to as she did during the subsistence of
Further, another error made by the High Court was that they have failed to
differentiate between the terms adultery
and living in adultery.
Adultery is the sexual intercourse of two persons, either of whom is married to
a third person. This clearly supposes the subsistence of marriage between the
husband and wife and it is during this subsistence that if a wife lives in
adultery then she would be disqualified from claiming maintenance under Section
125 of the Criminal Procedure Code.
In the context of Section 125 the term living in adultery
has been used and it
has been defined in several previous judgments; while the definition of
, on the other hand, constitutes of a single act of sexual intercourse
outside of the marriage.
The definition of the phrase living in adultery
in the section denotes a
continuous course of action rather than singular events of immorality. One or
two acts of sexual misconducts would be insufficient to prove that the woman was
living in adultery
. It denotes the principle that a husband is absolved
from the obligation to maintain his wife when his wife has some man other than
her husband to maintain her.
The obligation of the husband arises to maintain
his wife as Chapter IX was created to protect the deserted wives from means
something quite different from living an unchaste life. A wife is supposed to
continue getting maintenance till she re-marries. The husband is absolved
from maintaining his wife only when she has a de facto protector who can
maintain her or when her adulterous conduct has persisted for some length of
time suggesting that she has found herself another albeit less honorable source
In conclusion, the Madras High Court tried to direct the debate towards Section
125 of the Criminal Procedure Code which is essential. As the law stands right
now adulterous wives/widows have the benefit of still getting maintenance from
Section 125 of the Criminal Procedure Code has been one of the most effective
legal instruments for providing parents, children and, mostly, wives with the
economic support that is required. This Section, however, needs to be amended.
As already noted by the Court the term wife should include divorced wives as
the entire Chapter IX was built while keeping them in mind as well.
In this case even if it is assumed that the respondent did have a relation with
a man other than her husband, she is entitled to get maintenance from the
petitioner since Section 125(4) is not attracted in this case. The judgment
given by the Madras High Court was given in the right direction but there was no
substantial reasoning given by them. The husband should maintain the wife unless
she has another de facto protector or another less honorable source of income.
In this day and age, where women empowerment has seen a rise and women have
broken the old cultural boundaries and perceptions of women only being the
household care-taker, women are encouraged to work and earn their own living. In
cases such as this one there should be allowance for maintenance for a limited
time period in which the wife is expected to adapt to the changing environment
and earn a living for herself. There is a need for the laws to be amended and
the present case has been successful in triggering this debate.
Award Winning Article Is Written By: Mr.Harsh Mahaseth
- M. Chinna Karuppasamy v. Kanimozhi, 2015 SCC OnLine Mad 6845
- Shamima Farooqui v. Shahid Khan, (2015) 5 SCC 705.
- Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors., (1978) 4
- Vanamala v. H.M. Ranganatha Bhatta, (1995) 5 SCC 299
- Rohtash Singh v. Ramendri and Ors., 2000 (2) SCR 58
- Khin v. N. L. Godenho, AIR 1936 Rangoon 446
- Ravi Kumar v. Santosh Kumari, (1997) ILR 2 Punjab and Haryana 357
- Lakshmi Ambalam v. Andiammal, AIR 1938 Madras 66
- Nesamma v, Manuvel Hentry, LAWS(KER)-1961-10-5
- Valsarajan v. Saraswathy, 2003 (2) KLT 548
is an Assistant Lecturer at Jindal Global Law School, and a Research Analyst at the Center for Southeast Asian Studies, Jindal School of International Affairs, O.P. Jindal Global University.
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