It has to be stated at the outset that in a major development, the Delhi High Court as recently as on April 13, 2022 in a noteworthy judgment titled Sh Pradeep Kumar Sharma v. Smt Deepika Sharma in Crl.Rev.P. 417/2021, Crl.M.A. 19829/2021 & CRL. M.A.86/2022 and cited in 2022 LiveLaw (Del) 324 has reiterated that only continuous and repeated acts of adultery or cohabitation in adultery would attract the rigours of the provision under Section 125(4) of the Code of Criminal Procedure. There is no gainsaying that Section 125(4) of the CrPC stipulates that no wife shall be entitled to receive an allowance from her husband 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. Justice Chandra Dhari Singh observed that law on maintenance is a welfare law that exists to ensure that the wife, children and parents of an able and capable man are not left to become destitute in cases when they themselves are not capable of maintaining themselves.
To start with, this learned judgment authored by a single Judge Bench of Delhi High Court comprising of Justice Chandra Dhari Singh first and foremost puts forth in para 1 that, “The instant criminal revision petition has been preferred by the petitioner under Section 397/ 401 read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter “Cr.P.C.”) seeking setting aside of order and judgment dated 31st July, 2020 passed by the learned Additional Principal Judge, Family Court, Tis Hazari Courts, Delhi in CC No. 6834/2016 (MT No. 800/2014).”
Briefly stated, the Bench then notes in para 2 that, “The instant petition has been filed in the aftermath of matrimonial discord between the parties and the brief background of the same is discussed hereinunder:-
a. The marriage between the petitioner and the respondent was solemnized on 9th April, 2000 according to Hindu rites and ceremonies and two children were born out of the wedlock.
b. Due to several disputes amongst the parties, several criminal and civil cases, complaints and FIRs were filed by both the parties against each other.
c. The instant petition has been filed against the Order of the learned Additional Principal Judge passed in CC No. 6834/2016, filed by the respondent under Section 125 of the Cr.P.C., whereby the learned Additional Principal Judge granted the maintenance of Rs. 6000/- per month from 14th February, 2012 to 28th February, 2013, Rs. 6000/- per month from 1st April, 2014 to 31st December, 2015, Rs. 7000/- per month from 1st January, 2016 to 31st July, 2020 and Rs. 15,000/- per month from 1st August, 2020 till the life of the respondent or her remarriage.
d. The petitioner is impugning the said Order dated 31st July, 2020.”
FINDINGS AND ANALYSIS
Para 15 explains the provision of maintenance as laid down under Section 125 of CrPC.
To be sure, the Bench then stipulates in para 16 that, “The grant of maintenance by a husband towards his wife, children and parents is subject to the conditions laid down in the provision. With regard to maintenance to wife, it is evident that a husband must provide maintenance as awarded to wife when she is unable to maintain herself, and only if the exceptions as mentioned above are existing, can the husband escape his duty of paying maintenance.”
To put things in perspective, the Bench then envisages in para 17 that, “In the instant case, the petitioner is challenging the Order of maintenance on the grounds of cruelty, adultery, desertion without reason as well as the fact that the wife was capable enough of maintaining herself. The learned Additional Principal Judge has gone into deep, evaluative and comprehensive appreciation of evidence and facts on record while passing the impugned Order.”
As it turned out, the Bench then discloses in para 18 that, “The petitioner has pleaded cruelty as a ground for the wife not being entitled for the maintenance and has elaborately submitted the contentions for alleging cruelty and harassment against the respondent. The law emanating from various precedents of the Hon’ble Supreme Court and various High Courts establishes the position of payment of maintenance holding that the ground of cruelty does not disentitle the wife of her right to maintenance. Even in cases where divorce is granted on the ground of cruelty, Courts have awarded permanent alimony to the wife and there is no bar of cruelty in the right of the wife to claim maintenance.”
As a corollary, the Bench then holds in para 19 that, “Therefore, in light of the above, the ground of cruelty and harassment do not stand ground for non-payment of the maintenance amount.”
Without mincing any words, the Bench then observes in para 20 that, “Secondly, the ground of adultery has been taken by the petitioner. The petitioner made several arguments here, as well as before the Court below, to allege that the respondent committed adultery with one Pankaj Arya. Petitioner relied upon school records of their son, Master Pushkar, and his statement during his examination. It was not the case of the petitioner that the respondent was living in adultery, neither did he add the ground to his pleadings nor was the respondent put to notice about the alleged adultery. Allegations were made by the petitioner, before the learned Additional Principal Judge, that the respondent named Mr. Pankaj Arya to be appointed as a local guardian of her son in his school in Panchkula, Chandigarh. He further alleged that the factum of the adultery on part of the respondent was brought into light by the son. However, by the statements of the son, during his examination, the petitioner failed to establish that the respondent was living with Mr. Pankaj Arya, in adultery, and he was not even cross-examined to confirm his version. The ground was brought about at a belated stage and the respondent was not cross-examined on the question of adultery. It is also pertinent to consider that the son was not an independent witness and was living with the petitioner at the time of recording of his evidence. Hence, keeping in view the same, learned Additional Principal Judge eliminated the ground taken by the petitioner before it in relation to the allegation of adultery by the respondent.”
As we see, the Bench then mentions in para 21 that, “The petitioner relied upon Section 125 (4) of the Cr.P.C. to contend that the respondent is not entitled to maintenance since she was living in adultery with Mr. Pankaj Arya. To give force to this argument the petitioner had to follow the mandate of the law with regard to the requisites under Section 125 (4) of the Cr.P.C. and even the burden of proof for proving adultery against the respondent also lied upon him.”
Needless to say, the Bench then underscores in para 22 that, “The codified law and judgments of various High Courts settle the position with respect to bar of adultery for grant of maintenance in favour of the wife. The law mandates that in order to extract the provision under Section 125(4) of the Cr.P.C. the husband has to establish with definite evidence that the wife has been living in adultery, and one or occasion acts of adultery committed in isolation would not amount to ‘living in adultery’. The concept of ‘living in adultery’ has been defined by the various Courts time and again.”
While citing the relevant case law, the Bench then states in para 24 that, “In Sandha v. Narayanan, 1999 SCC OnLine Ker 64, the Kerala High Court observed as under:
“8. The phrase ‘living in adultery’ used in Sec. 488(4) of the Cr. P.C. 1898 which is akin to Sec. 125(4) of the present Cr. P.C. has been considered by various High Courts in India and have taken the uniform view that living in adultery denotes a continuous course of conduct or living in the state of quasi permanent union with the adulterer. In the decision in Ma Mya Khin v. N.L. Godenho (AIR 1936 Rang. 446) the Rangoon High Court has observed as follows:
“Emphasis must be laid upon the words ‘living in adultery’. The words used are not ‘committed adultery’, and there is clearly a great distinction between ‘committing adultery’ and ‘living in adultery’ denotes a continuous course of conduct and not isolated acts of immorality. One or two lapses from virtue would be acts of adultery but would be quite insufficient to show that the woman was ‘living in adultery’, which means, so far as I understand the expression, that she must be living in a state of quasi permanent union with the man with whom she is committing adultery.”
9. In the decisions in Lakshmi Ambalam v. Andiammal (AIR 1938 Mad. 66) and Kista Pillai v. Amirthammal (AIR 1938 Mad. 833) the Madras High Court has held that living in adultery is something different from leading an unchaste life and unless the wife is actually living in adultery at or about the time of the application, she is not disentitle to obtain maintenance and continued adulterous conduct and not occasional lapses from virtue constitutes sufficient reason for refusing maintenance.
11. In the decision in Nesamma v. Hentri (1961 KLT 964) this court after considering the decisions of several High Courts has held that an occasional lapse from virtue, or immoral conduct long before the time maintenance is applied for does not disentitle a wife for relief under S. 488 of Cr. P.C. 1898 and observed as follows:
“The provision that the wife is disentitled to maintenance if she is ‘living in adultery’ means that the husband can withhold his aid only when her adulterous conduct has continued for some length of time suggesting thereby that she has found another albeit less honourable haven from the chill winds of penury.””
Quite significantly, the Bench then points out in para 27 that, “Hence, it is found that the law, as interpreted by the High Courts of the Country, evinces that only continuous and repeated acts of adultery and/or cohabitation in adultery would attract the rigours of the provision under Section 125 (4) of the Cr.P.C. In the instant matter, the petitioner before the learned Additional Principal Judge sought the non-payment of maintenance on the ground of adultery under Section 125(4) of the Cr.P.C., however, the grounds taken by him did not establish even prima facie that the respondent was living in adultery. Even the statement by the son of the parties was made by after considerable amount of time of the trial had passed and the respondent had already been cross-examined. Therefore, the second ground of the petitioner also could not be established to contend that the respondent was not entitled to any maintenance.”
Be it noted, the Bench then clearly states in para 28 that, “The petitioner has also stated that the respondent had deserted him and had left his company without any reason. It is also a fact that the petitioner filed for divorce on the ground of cruelty, therefore, the learned Additional Principal Judge has rightly observed that since the petitioner had sought divorce on the ground of cruelty, he could not have simultaneously urged that he was aggrieved by the alleged desertion of the respondent.”
Furthermore, the Bench then observes in para 29 that, “Further, the petitioner, though has taken the ground before the learned Additional Principal Judge that the respondent is capable enough to maintain herself and was employed with Mr. Pankaj Arya, however, he was not able to show that she continues to be employed and has sufficient means to maintain herself.”
CONCLUSION
Most significantly, the Bench then minces no words to hold in para 30 that, “The law of maintenance of the country, including Section 125 of the Cr.P.C. are welfare laws that exist to ensure that the wife, children and parents of an able and capable man are not left to become destitute in cases when they themselves are not capable of maintaining themselves. However, the recent practice has become to abuse the process of law and escape the liability that is imposed upon the husband on contentions that hold no ground. The instant matter is also one such case, where the parties have indulged in several complaint and criminal cases with no consequence. The order of maintenance has been challenged despite there being clear mandate of law regarding all the questions led by the petitioner. In light of the mandate of law under Section 125 of the Cr.P.C., the observations of the High Courts, and facts and circumstances of the present matter, this Court is not inclined to allow the instant petition, since the petitioner has failed to show any ground for challenging the order under the revisional jurisdiction of this Court.”
Quite rightly, the Bench then notes in para 31 that, “The learned Additional Principal Judge, while passing the impugned Order has taken into account all facts, circumstances, arguments, material on record as well as the law laid down under the Cr.P.C. and the judgements of various High Courts. All the above made contentions taken before the Court below were well appreciated, consequent to which the reasonable judgment and order was passed.”
Of course, the Bench then hastens to add in para 32 that, “Keeping in view the above observations, this Court does not find any cogent reason to interfere with the impugned order and judgment dated 30th July, 2020 passed by learned Additional Principal Judge, Family Court, Tis Hazari Courts, Delhi in CC No. 6834/2016 (MT No. 800/2014) since there is no illegality, impropriety or error apparent on record in the same.”
Resultantly, the Bench then holds in para 33 that, “Accordingly, the instant Criminal Revision Petition is dismissed for the reasons stated above.”
In addition, the Bench then states in para 34 that, “Pending application, if any, also stands disposed of.”
Finally, the Bench then concludes by holding in para 35 that, “The judgment be uploaded on the website forthwith.”
In conclusion, the Delhi High Court has minced no words to make it absolutely clear that wife’s right to maintenance is forfeited under Section 125(4) of CrPC only when acts of adultery are committed repeatedly. This is what the Courts must always adhere to while ruling in similar such cases. No denying it!
Sanjeev Sirohi