Wife divorced for committing adultery not entitled to maintenance, Bombay HC

The Bombay High Court recently pointed out that a wife, divorced on ground of adultery having been proved against her, is not entitled to maintenance from her former husband.

Justice Nitin W Sambre made the observation while dismissing a petition by a divorced wife challenging a Sessions Court order that had cancelled maintenance earlier awarded to her.

The Sessions Court had passed the order in view of the embargo on granting maintenance to a wife who was divorced on proven charges of adultery against her under Section 125 (4) of the Criminal Procedure Code (CrPC).

Section 125 (4), CrPC states,

"No Wife shall be entitled to receive an allowance from her husband under this section 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."

The couple had gotten married in1980 and later divorced in 2000, as per Section 13 of Hindu Marriage Act on the ground of adultery. While allowing plea for divorce by the husband, the Court had awarded petitioner wife and son Rs. 150 and Rs. 25 per month as maintenance at the time.

The wife, however, moved an application to enhance the maintenance, which was allowed by a Magistrate Court in 2010. The Magistrate enhanced maintenance amount to Rs. 500 and Rs. 400 for the wife and son respectively.

An application moved by the husband for the cancellation of maintenance was rejected. Subsequently, the husband moved a revision application, which was allowed by a Sessions Court in 2015.

This was the Sessions Court order challenged in the High Court by the divorced wife, who sought the restoration of maintenance.

Advocate Mahendra B Deshmukh submitted for the wife that even if the petitioner is a divorcee, she is entitled for maintenance, as she continues to be woman within the meaning of Section 125, CrPC.

In this regard, advocate Deshmukh referred to the Supreme Court's rulings in Vanmala v H M Ranganatha Bhatta and Rohtash Singh v Ramendri.

On the other hand, advocate Kayval P Shah opposed the writ plea on behalf of the former husband, arguing that in view of statutory embargo under Section 125 (4), CrPC, the Sessions Court had rightly refused maintenance to the wife.

In turn, Justice Sambre observed that said decisions of the Supreme Court decisions cited by the petitioner do not apply to the present. Both the cases were based on identifying right of a woman who was not divorced on the ground of proven adultery, the Court noted.

In light of this, the Court upheld Sessions Court order and dismissed the petitions by the divorced wife for lack merit. The Court held,

“Considering the expressed embargo on the right of the Petitioner, to claim maintenance particularly, divorce was ordered on 27.4.2000 based on the allegation of adultery, the Court below has rightly held that the Petitioner-wife is not entitled for maintenance.”

[Read Order dated December 18, 2019]