The Punjab and Haryana High Court at Chandigarh in a matrimonial dispute has observed that maintenance can only be declined when it has been proved and established that the wife is living in adultery.

The Bench of Justice Vivek Puri observed-

"The maintenance can be declined, in the event, it is proved and established that the wife is living in adultery. "Living in adultery" means a continued adulterous conduct and not a single or occasional lapse. Solitary act of adultery or on isolated lapse of wife, will not disentitle the wife to claim the maintenance."

The Court while referring to Section 125(4) CrPC held that the burden of unchastity is on the husband. Unless it is found that at the relevant time, the wife was actually living in adultery, she is not disentitled to claim maintenance. The material on record must indicate that the wife was living in adultery shortly prior to the institution of subsequent thereto.

The Petitioner-Husband assailed the order of the Court of Principal Judge, Family Court, Rewari, vide which the application for additional evidence filed on behalf of the Petitioner-Husband had been dismissed.

In this case, Respondent No. 1 – Wife had instituted a petition under Section 125 CrPC for self and on behalf of three minor children alleging that marriage was solemnized with the Petitioner in the year 2004. The Petitioner-Husband had refused and neglected to maintain the Respondents.

The Petitioner resisted the Petition alleging that Respondent No 1 was having an adulterous relationship and admitted this fact in terms of the writing of the year 2005. Even sought to dispute the paternity of Respondents 2 to 4.

After the conclusion of the evidence of the Petitioner, he moved an application for additional evidence for examining a handwriting expert to prove the writing of the Petitioner-wife.

Counsel Kanhiya Soni appeared for the Petitioner while Counsel Vivek Khatri appeared for the Respondents before the Court.

It was alleged that the aforesaid document was well within the knowledge of the Petitioner and in his custody. He has been given sufficient opportunity to produce evidence and has intentionally and deliberately moved the application at a belated stage to fill up the lacuna in the case.

The Petitioner contended before the Court that in terms of the writing of 2005, Respondent No. 1 had admitted the fact that she was carrying pregnancy, the child in the womb does not belong to the Petitioner, the same belongs to someone from her village Bapas and she wants to abort the child of her own wish.

The Court noted, "It shall not be out of place to mention here that Section 125 of the Code is meant to achieve a social purpose. It is a piece of social legislation, which provides for summary and speedy relief by way of maintenance to the wife, who is unable to maintain herself and her children."

Further, the Bench observed that maintenance can be declined in the event it is proved and established that the wife is living in adultery.

The Court noted that it is not a case of the Petitioner that shortly prior to the institution of the petition or subsequent thereto, Respondent no.1 was continuously living an adulterous life.

The Court also noted that the course of adulterous conduct must not be a matter of the past, but must be continuing at the time of presentation of the Petition.

"The stale alleged act of adultery is indicative of the fact that such act has been condoned and consequently, the allegation to the effect that the respondent no.1 was living in adulterous life way back in the year 2005 cannot be termed to be a circumstance, which may be significant enough to dispute the claim of the respondents to claim maintenance from the petitioner. This is also a significant circumstance which indicate that the proposed evidence is not essential to decide the controversy," the Bench thus observed.

Accordingly, the Court dismissed the Petition holding that no irregularity or illegality was made out in the impugned order passed by the Court below.

Cause Title – Amit Kumar Yadav v. Suman Devi & Ors.

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