While setting the record entirely straight and not leaving any layer of cloud of uncertainty to hover over a very significant legal issue pertaining to the legal right of a wife who was living in adultery with her neighbour to claim maintenance from her husband, the Karnataka High Court in a most learned, laudable, landmark and latest judgment titled S vs T in Criminal Revision Petition No. 56 of 2016 and cited in Neutral Citation NC: 2023:KHC:33789 that was pronounced as recently as on September 19, 2023 has held unequivocally that a wife cannot claim maintenance from her husband under Section 12 of the Domestic Violence Act when she is in an adulterous relationship with another person. It must be mentioned here that the Single Judge Bench comprising of Hon’ble Mr Justice Rajendra Badamikar was dealing with the petition filed by the wife challenging the order passed by Additional Sessions Judge, whereby the Sessions Judge has set aside the order of granting maintenance to the petitioner under Section 12 of the Protection of Women from Domestic Violence Act, 2005 along with compensation. The woman’s revision petition thus was dismissed. The Bench also clearly held while dismissing the woman’s revision petition that, “…since the petitioner is claiming maintenance, she must prove that she is honest and when she herself is not honest, she cannot pin-point her fingers towards her husband.” Absolutely right.
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Rajendra Badamikar of Karnataka High Court sets the ball in motion by first and foremost putting forth in para 1 that, “This is petition filed by the wife challenging the order passed by II Additional Sessions Judge, Chikkamagaluru, in Crl.A.No.251/2013, dated 06.11.2015 whereby the learned Sessions Judge has set aside the order of granting maintenance to the petitioner under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short ‘D.V. Act’) along with compensation.”
To put things in perspective, the Bench envisages in para 3 that, “The brief factual matrix leading to the case are that the petitioner has filed the petition under Section 12 of the D.V. Act claiming protection order under Section 18, residential order under Section 19 and monetary benefit under Section 20 in the form of maintenance of Rs.3,000/- per month and compensation of Rs.25,000/- under Section 22 of the said Act. After appreciating the oral and documentary evidence, the learned Magistrate granted a protection order under Section 18 of the D.V. Act. He has also awarded maintenance of Rs.1,500/- to the petitioner with Rs.1,000/- towards rent allowance and also awarded Rs.5,000/- towards compensation.”
As it turned out, the Bench then enunciates aptly in para 4 that, “This order is being challenged by the husband before II Additional Sessions Judge, Chikkmagaluru, in Crl.A.No.251/2013 by filing an appeal under Section 29 of the D.V. Act. The learned Sessions Judge after re-appreciating the oral and documentary evidence, allowed the appeal by setting aside the impugned order passed by the learned Magistrate in Crl.Misc.No.17/2009 and dismissed the petition.”
Needless to say, the Bench then lays bare in para 5 that, “Being aggrieved by this order of rejecting the maintenance and denying compensation, this revision is filed by the wife.”
Simply put, the Bench then states succinctly in para 6 observing that, “Heard the learned counsel for the revision petitioner/wife and learned counsel for the respondent/husband. Perused the records.
As we see, the Bench then discloses in para 9 that, “Having heard the arguments and perusing the records, it is evident that there is no serious dispute of the fact that the petitioner was the wife of the respondent. She has filed a petition under Section 12 of the D.V. Act, claiming various reliefs. However, it is the specific contention of the respondent husband is that the petitioner has eloped with a neighbor by name XXX and he was compelled to lodge a complainant. In this context, the respondent has placed reliance on Ex.R1 statement given by the petitioner before the police and Ex.R2 is the complainant lodged by the husband. Ex.R3 is the endorsement issued by the police to the respondent, wherein they have specifically stated that the wife has refused to join the husband and she preferred to stay with her paramour XXX.”
Most significantly, most forthrightly and so also most remarkably, the Bench then minces absolutely no words to propound in para 10 that, “Ex.R1, R2 & R3 are not at all challenged by the revision petitioner. Further, it is also submitted that, on the same ground, now the divorce has been granted by the family Court and this statement is also not challenged. The respondent was got examined himself as RW1 and he has reiterated the allegation regarding the petitioner being eloping with XXXX RW2 is the neighbor and he has also deposed to this fact. RW3 is the brother of the petitioner and he has specifically asserted that the respondent never subjected the petitioner to ill-treatment demanding dowry. He has also asserted that his sister-petitioner is staying along with XXXX and they did conduct the panchayat and initially, the husband and wife were residing together, but again, she joined XXXX. Though in the cross-examination it is suggested that petitioner is not having any income to maintain herself, but this witness specifically asserted that she is staying with XXXX and is taking care of her maintenance. Apart from that, the evidence of XXXXXX-RW3 is supported by the son of the parties by name XXXXXXX who is examined as RW4. He has also specifically deposed regarding his mother eloping with XXXX. Though he was cross-examined, nothing was elicited. XXXX was also examined as RW5 by obtaining summons, but he has turned hostile and quite natural, which is expected. The oral and documentary evidence produced clearly establish that the petitioner is not honest towards her husband and she has got extramarital affairs with neighbor XXXX and all along, she asserted that she used to stay with him. When the petitioner is staying in adultery, the question of she claiming maintenance does not arise at all. The contention of the petitioner that the petitioner is a legally wedded wife and entitled for maintenance cannot be accepted in view of the conduct of the petitioner, who is not honest and is leading adulterous life.”
Most commendably, the Bench does not dither to mandate most clearly, cogently and convincingly in para 11 that, “The learned counsel for the revision petitioner has also invited the attention of the admission given by RW1 regarding he is having illicit relationship with daughter of his sister-in-law. Though that aspect has been disputed, since the petitioner is claiming maintenance, she must prove that she is honest and when she herself is not honest, she cannot pin-point her fingers towards her husband.”
Finally and far most significantly, it cannot be glossed over that the Bench then concludes by holding and directing in para 12 that, “The learned Magistrate has failed to appreciate any of these aspects and in a mechanical way, awarded the maintenance and compensation, which is a perverse order. The learned Sessions judge has re-appreciated the oral and documentary evidence and has rightly rejected the claim of the petitioner in view of the fact that she was leading an adulterous life. Considering there facts and circumstances no illegality or perversity is found in the order of learned Sessions Judge so as to call for interference by this Court. Hence, revision petition being devoid of any merits, does not survive for consideration and accordingly, I proceed to pass the following:
ORDER
The revision petition stands dismissed.”
All told, the bottom-line of this most remarkable judgment by the Karnataka High Court is that the wife who is herself living in adultery with her neighbour without any compunctions whatsoever has no right to claim maintenance from her husband. There can be no gainsaying that for a wife to be considered eligible for maintenance, it is absolutely imperative that she comes to the court with clean hands. This begs the all-important question: With what face can a wife ask for maintenance from her husband when she is living in an adulterous relationship with her neighbour and who is even maintaining her? No doubt, the wife thus by her conduct has deprived herself of her otherwise legitimate right to receive maintenance from her husband. It thus must be said that the Magistrate’s decision was very rightly set aside by the Additional Sessions Judge on an appeal filed by the husband. The counsel who represented the husband said that the marriage has already been set aside by a family court on the ground of adultery as well as cruelty. On a revision petition that was filed against this order, we thus finally see that the Karnataka High Court while deciding the case on merits very rightly held that the Magistrate has failed to appreciate any of these aspects and in a mechanical way awarded the maintenance and compensation. No denying it!
Sanjeev Sirohi
