Section 125 CrPC- Wife Entitled For Maintenance After Divorce If She Is Not Living In Adultery: Kerala HC [Read Judgment]

The Kerala High Court on September 25, 2019, in the case of K. Shyamala v. Purakkanath Balakrishnan has held that future maintenance to a wife who was divorced on the ground of adultery can be denied only on the ground that she is 'living in adultery'.

A Division Bench comprising of Justice A.M. Shaffique and Justice N. Anil Kumar, while granting divorce to a husband on the ground of adultery by wife, observed that there is no pleadings to indicate that she is living in adultery to deny her maintenance.

The learned counsel appearing for the wife submitted before the court that as per Section 125(4) of the Code of Criminal Procedure, 1973, Living in adultery means that the wife she should continue to live in adultery despite the fact that the couple had been divorced on the ground of adultery. A single instance pointed out by the husband and proved before Court does not mean that she continues to live in adultery.

The Bench observed: Under the Hindu Marriage Act, divorce can be granted u/s 13(1)(i) if after solemnization of the marriage, one spouse has voluntary sexual intercourse with any person other than his/her spouse. In order to obtain a divorce u/s 13(1) (i), even a single instance of voluntary sexual intercourse with another person is enough, whereas u/s 125(4), to deny the maintenance, the words used are "living in adultery.

The court also observed that, when there is evidence in the case to prove that the wife was indulging in adultery, she cannot be granted past maintenance.

[Read Judgment]