Patna High Court
Mere Lapse & A Return Back To Normal Life Can’t Be Adultery: Patna High Court Directs Husband To Pay Maintenance To Wife
|The Patna High Court allowed a Criminal Revision Petition seeking to set aside the Order of the Family Court, which directed maintenance in favour of the son but denied the same to the wife.
The Patna High Court has directed the husband to pay maintenance to his wife, saying that a mere lapse and a return bank to the normal life cannot be said to be living in adultery.
The Court was hearing a Criminal Revision Petition seeking to set aside the Order of the Family Court, which directed maintenance in favour of the son but denied the same to the wife.
A Single Bench of Justice Jitendra Kumar observed, “Moreover, “living in adultery” is distinct from “committing adultery”. “Living in adultery” denotes a continuous course of conduct and not isolated acts of immorality. One or two lapses from virtues would be acts of adultery but would be quite insufficient to show that the woman was “living in adultery”. A mere lapse, whether it is one or two, and a return back to a normal life can not be said to be living in adultery. If the lapse is continued and followed up by a further adulterous life, the woman can be said to be “living in adultery.”
The Bench held that the husband failed to prove that his wife has been living in adulterous life with another man.
Advocate Fazle Karim represented the Petitioners while Senior Advocate N.K. Agrawal and APP Anuj Kumar Shrivastava represented the Respondents.
Facts of the Case
The Petitioners (Respondent’s wife and son) had filed a Maintenance Case before the Family Court under Section 125 of the Criminal Procedure Code, 1973 (CrPC). The marriage between the Petitioner and Respondent was solemnized in 2013 as per Muslim rites and customs and a son was born out of the wedlock in 2014. Allegedly, during the pregnancy, the Petitioner came back to her parental home on account of ill behaviour of relatives of her husband. It was alleged that after the birth of child, her husband and his family members started demanding Rs. 5 lakhs towards additional dowry and threatened that in case of failure to fulfill the same, her husband would solemnize second marriage with another girl.
It was alleged that on account of failure to pay additional dowry, the Petitioner was ousted from the matrimonial home in 2017 and even her ornaments were snatched from her. Thereafter, the husband allegedly solemnized second marriage. Hence, the Petitioners claimed monthly maintenance @ Rs. 20,000/-. In his written statement, the Respondent claimed that the Petitioner had developed illicit relationship with a man. The Family Court directed the husband to pay Rs. 4,000/- per month as maintenance to his son; however, denied any maintenance to his wife. Hence, the Petitioners approached the High Court.
Reasoning
The High Court in the above regard, said, “Coming back to the case on hand, I find that Respondent No. 2/Md. Shamshad has pleaded that he has divorced his wife/Bulbul Khatoon, who is petitioner No. 1 herein, by pronouncing Triple Talaq in the presence of one witness in one sitting. He has also adduced evidence in support of such pleadings. However, there is no claim that he has paid a single paisa to his wife during iddat period towards her maintenance, let alone making any provision for her life. It is also admitted that he has not paid even Dainmehar to his wife.”
The Court referred to the Judgment of the Supreme Court in the case of Shayara Bano v. Union of India (2017), wherein ‘Triple Talaq’ was held as void and illegal.
“Hence, Bulbul Khatoon cannot be held to be a divorced wife. There is also no pleading or evidence on record to prove that Bulbul Khatoon has been divorced by Md. Shamshad by any other legal mode”, it added.
Furthermore, the Court remarked that even if it is presumed for a moment that the Petitioner is divorced, the liability of the Respondent to maintain his former wife is still there, because to escape from liability to pay monthly maintenance to his wife, he was required not only to pay maintenance to his wife during iddat period, but was also required to make provision for life of his former wife during iddat period.
“But nothing of the sort has been done by Md. Shamshad in favour of his former wife. Admittedly, even Dainmehar has not been paid by him to his former wife. … It is also not a case of Md. Shamshad that he got any decree of restitution against his wife/Bulbul Khatoon, nor has he claimed that he has been acquitted in the criminal complaint filed by Bulbul Khatoon”, it also noted.
Conclusion
The Court, therefore, held that the Petitioner is entitled to get maintenance from her husband because she has no means to maintain herself, whereas her husband is an able-bodied person and doing the work of labourer.
“However, I find that learned Family Court by the impugned judgment/order has denied maintenance to Bulbul Khatoon on account of his finding that she has been living in adultery with Md. Tarikat, whereas there is no such cogent evidence on record. As such, the findings of learned Family Court is based on no evidence or perverse appreciation of evidence. Accordingly, the impugned order is not sustainable in the eye of law and hence, it is set aside to this extent and it is held that the petitioner No. 1/Bulbul Khatoon is also entitled to get maintenance from her husband/Respondent No. 2 herein”, it concluded.
Accordingly, the High Court allowed the Petition and directed the husband to pay Rs. 4,000/- and Rs. 2,000/- as maintenance to his son and wife, respectively.
Cause Title- Bulbul Khatoon & Anr. v. The State of Bihar (Case Number: CRIMINAL REVISION No.509 of 2021)
Appearance:
Petitioners: Advocate Fazle Karim
Respondents: Senior Advocate N.K. Agrawal, APP Anuj Kumar Shrivastava, Advocates Bidhu Ranjan, and Saroj Kumar Choudhary.