Wife Not Entitled To Maintenance If Allegation Of Adultery Is Proved Against Her: Bombay HC

As anticipated, in yet another major ruling titled Sanjivani Ramchandra Kondalkar vs 1. Ramchandra Bhimrao Kondalkar 2. State of Maharashtra in Criminal Writ Petition No. 2547 of 2016 with Criminal Writ Petition No. 2546 of 2016, the Bombay High Court just recently on December 18, 2019 has once again reiterated what even the Supreme Court has time and again reiterated that if allegations of adultery are proved against the wife in a marriage, she is not entitled to maintenance. A wife is entitled to claim maintenance only if she is able to prove that all the allegations of adultery are wrong. A wife cannot maintain relation with some other man and yet claim maintenance from her husband! Very rightly so!

To start with, the ball is set rolling in para 1 of this commendable judgment authored by Justice Nitin W Sambre wherein it is observed that, “Both these Petitions are filed by the wife, questioning the order of denial of maintenance.” We thus see that it is the wife who is the aggrieved party. It is the wife who has called into question the order of denial of maintenance to her and challenged it.

To recapitulate, before moving to para 2, we need to further state that para 1 further observes that, “The un-disputed facts would be noted as under”. Now coming to para 2, it lays bare the basic facts stating that, “The parties to the Petition married on 6.5.1980 whereas the Petitioner was divorced by the Respondent in a Hindu Marriage Petition No. 252 of 1996 preferred under Section 13 of the Hindu Marriage Act, 1956 on 27.4.2000 on the ground of adultery. I am informed that the aforesaid Judgment was subjected to challenge in an Appeal however, the Appeal failed as the delay was not condoned.”

While delving deeper after stating the basic facts, it is then envisaged in para 3 that, “In the aforesaid background, the Petitioner-wife moved an application for enhancement of maintenance from Rs. 150/- and Rs. 25/- to the son which was allowed by the impugned order dated 12.8.2010. The learned Magistrate enhanced the maintenance amount to Rs. 500/- and Rs. 400/- to the wife and son respectively, whereas, the Application for cancellation of the maintenance moved by the husband, pursuant to the provisions of Sub-section (4) of Section 125 of the Code of Criminal Procedure, 1973 came to be rejected. As such, the husband preferred a Criminal Revision Application No. 204 of 2010. The aforesaid Revision came to be allowed vide the impugned judgment dated 13.7.2015 by the learned Additional Sessions Judge, Sangli. As such these Petitions.”

To put things in perspective, it is then pointed out in para 4 that, “As far as Writ Petition No. 2547 of 2016 is concerned, the same is preferred by the Petitioner-wife questioning the Judgment dated 13.7.2015 wherein the Judgment dated 12.8.2010 passed by the learned Magistrate, rejecting the application for cancellation of maintenance amount, came to be allowed.”

While continuing in the same vein, the Bench then puts forth the contention raised by the Petitioner-wife in para 5 that, “Learned counsel for the Petitioner-wife would urge that, even if the Petitioner is a divorcee, having regard to the provisions of Sub-section (4) of Section 125 of the Code of Criminal Procedure, 1973 she is entitled for maintenance as she continues, to be a woman, within the meaning of Sub-section (4) of Section 125 of the Act.”

Going forward, para 6 then further goes on to illustrate that, “He would draw support from the Judgments of the Apex Court in VANAMALA VS H.M. RANGANATHA BHATTA reported in 1995 DGLS (SC) 722 and ROHTAS SINGH VS RAMENDRI reported in 2000 DGLS (SC) 450 so as to support his aforesaid contentions. The sum and substance of the submission is even if there is a decree of divorce passed on the allegation of adultery, still bar under Sub-section (4) of Section 125 of the Act, will not be attracted, as even after divorce, she ceases to have the status of a wife but, she continues to be a woman.”

On the contrary, what is then pointed out by the Bench in para 7 is this: “Per contra the aforesaid submissions, learned counsel for the Respondent submits that the divorce proceedings initiated by the Respondent-husband came to be allowed, as the allegation of adultery was proved against the Petitioner-wife. According to him, in view of the statutory embargo under Sub-section (4) of Section 125 of the Act, the Court below has rightly held that the Petitioner is not entitled for maintenance.” Adultery is a very serious charge and has to be taken most seriously! This is what we see that the Court has done here also!

After noting in para 8 that, “Considered rival submissions”, it is then enunciated by the Bombay High Court in para 9 that, “Learned counsel for the Petitioner has tried to rely on the judgments of the Apex Court in VANAMALA and ROHTAS SINGH supra so as to claim the status of the Petitioner-wife as that of a woman continues, inspite of the divorce ordered on 27.4.2000. The fact remains that, there is an expressed embargo on the right of a woman to claim maintenance, pursuant to the provisions under Sub-section (4) of section 125 of the Act. If the allegation of adultery are proved against such a women or inspite of the husband being ready to maintain her and she refuses to cohabit the women/wife can be refused payment of maintenance.”

To be sure, it is then pointed out in para 10 that, “As far as factual matrix of the aforesaid case, namely VANAMALA and ROHTASH SINGH is concerned, both these cases are based on identifying and recognizing the right of a woman who was divorced not on the ground of proved adultery.”

Most importantly, it is then very rightly concluded by the Bombay High Court in para 11 after considering all the crucial facts of the case that, “In the aforesaid background, both these Judgments will be hardly of any assistance to the Petitioner. Considering the expressed embargo on the right of the Petitioner, to claim maintenance particularly, divorce was ordered on 27.4.2000 based on the allegation of adultery, the Court below has rightly held that the Petitioner-wife is not entitled for maintenance.” Very rightly so! There can be no denying or disputing it!

Moving on, it is then held by the Bombay High Court in para 12 that, “In the aforesaid background, no case for interference is made out. Both these Petitions lack merit.” Finally, it is then held in the last para 13 that, “Dismissed.” In other words, the Bombay High Court was not convinced of the contentions raised by the Petitioner-wife. Earlier also in the lower courts her claim was rejected as has already been pointed out in detail above.

In sum, the Bombay High Court has very rightly concluded in this latest, landmark and extremely laudable judgment that wife is not entitled to maintenance if allegations of adultery is proved against her. What is important to note here is that the Bombay High Court has also made it clear that just allegations of adultery by the husband are not enough. Those allegations must certainly be proved against her. If they are proved as have been proved in this noteworthy case only then the women will be denied maintenance as she will be held not entitled to do so as we have seen in this latest case also! Very rightly so!

Sanjeev Sirohi

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