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Occasional acts of adultery committed in isolation do not disentitle woman from maintenance: Delhi HC

Team SoOLEGAL 15 Apr 2022 11:44am

Occasional acts of adultery committed in isolation do not disentitle woman from maintenance: Delhi HC

New Delhi: The Delhi High Court has ruled that one or a few isolated acts of adultery do not constitute "living in adultery," and thus do not disentitle a woman from receiving maintenance after a divorce.

Only continuous and repeated acts of adultery by the wife would attract the legal exception to the grant of an allowance by the husband, according to Justice Chandra Dhari Singh, who was dealing with a challenge to a trial court order directing the husband to pay monthly maintenance to the wife.

In an order issued under section 125 of the Criminal Procedure Code, the trial court ordered that the husband pay the wife Rs 15,000 per month with effect from August 2020.

The husband argued in his challenge to the trial court order that the direction for maintenance payment cannot be maintained on several grounds, such as cruelty, adultery, and desertion by the wife.

The husband's assertions were rejected by the high court, which noted that while the law of maintenance aims to ensure that an able and capable man's wife, children, and parents are not left destitute, "recent practice" was to "abuse the process of law and escape the liability that is imposed on the husband on contentions that hold no ground." The high court stated that "cruelty and harassment do not stand ground" for non-payment of maintenance, and also that courts have awarded alimony to the wife even when a divorce is granted based on cruelty.

“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,” the court stated in a recent order.

“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,” it stated.

The court held that the husband failed to establish even a prima facie case against the wife and that the law required the wife to be living in adultery for her to be barred from receiving maintenance under section 125 CrPC.

The husband must establish with definite evidence that the wife has been living in adultery, and one or a few isolated acts of adultery would not amount to living in adultery, it stated.

The court also rejected the desertion ground, and the husband's challenge to the trial court order was dismissed.



Tagged: Section 125   divorce   Supreme Court  
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