Adultery Can Be Established Through Circumstantial Evidence If Circumstances Lead Logically To That Conclusion: Kerala High Court

The Kerala High Court has held that adultery can be established through circumstantial evidence, provided the circumstances lead logically to that conclusion. 

The Court was considering a Revision Petition filed challenging the order of maintenance granted by the Family Court in proceedings under Section 125 of the Cr.P.C.

The Bench of Justice Kauser Edappagath held, ".....When the husband alleges that the wife is living in adultery and thereby disqualified from claiming maintenance, he is not required to prove the adulterous act beyond a reasonable doubt, as in criminal prosecution under the now-repealed Section 497 of IPC. Instead, proof by preponderance of probabilities is sufficient. Adultery typically occurs in secrecy, making direct proof rare. Consequently, adultery can often be established through circumstantial evidence, provided the circumstances lead logically to that conclusion."

The Petitioner was represented by Advocate A. Rajasimhan, while the Respondent was represented by Advocate T.K. Rajeshkumar.

Facts of the Case

The Petitioner- Husband married the Respondent- Wife in 2003. After a few years of marriage, marital disputes arose between them. The Petitioner- Husband filed an Original Petition for Divorce before the Family Court. It was submitted that it was allowed, and divorce was granted. The Respondent- Wife filed a Petition in the same court, invoking Section 125 of the Cr.P.C., claiming maintenance at the rate of ₹25,000/- per month.

The Petitioner- Husband resisted the claim mainly on the ground that the Respondent- Wife is living in adultery and hence she is disentitled to claim maintenance under subsection (4) of Section 125 of Cr.P.C. The Family Court did not accept the said contention and allowed the maintenance case, directing the Petitioner- Husband to pay maintenance at the rate of ₹7,500/- per month to the Respondent- Wife as per the impugned order.

Counsel for the Petitioner- Husband submitted that the impugned order is illegal and unsustainable as it is against the provisions of Section 125(4) of the Cr.P.C., which clearly says that no wife shall be entitled to receive an allowance for maintenance from her husband if she is living in adultery. He further submitted that sufficient evidence has been let in by the Petitioner- Husband to prove that the Respondent- Wife is living in adultery, and that evidence was overlooked by the Family Court without any reason.

Reasoning By Court 

The Court at the outset noted that Section (4) of Section 125 (Section 144(4) of BNSS) clearly specifies that a wife living in adultery is not entitled to claim maintenance

However, it clarified that a single instance of adulterous conduct is not enough to disqualify a wife from claiming maintenance; rather, there must be evidence of continuous adulterous behaviour.

The Court stated that the key issue is that when a husband defends proceedings under Section 125 of Cr.P.C. (Section 144 of BNSS) by claiming that the wife is living in adultery, what level of proof is required to establish that the wife is indeed living in adultery.

After looking into the evidence in detail, it held that circumstantial evidence are sufficient to establish the factum of ‘living in adultery’ on a balance of preponderance and probabilities to defeat the claim of the respondent under Section 125 of the Cr.P.C. 

"....The finding of the Family Court that the evidence on record is insufficient to prove that the respondent is living in adultery is against the settled principles of appreciation of evidence. The respondent is not entitled to maintenance from the petitioner as she is found to be living in adultery. The impugned order, thus, cannot be sustained, and accordingly, it is set aside", the Court ruled.

The Petition was accordingly allowed.

Cause Title: Jinesh C.R. v. Aswathy P.R. (2025:KER:88717)

Appearances:

Petitioner- Advocates A. Rajasimhan, Vykhari K.U., Sharafudheen M.K. and Anas Ali M.M.

Respondent- Advocates T.K. Rajeshkumar, Manoj V. George, T.N. Bindu, Abhishek, Dhananjay Deepak and Jijo Jose

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