The Punjab and Haryana High Court has recently observed that unless it is found that, the wife was actually living in adultery at the relevant point of time, she is not disentitled to claim maintenance. The Court further opined that the material on record must indicate that the wife was living in adultery shortly before or after the petition of maintenance has been instituted.

The order was passed by the bench of Justice Vivek Puri. The bench also held that a solitary act of adultery will not disentitle the wife to claim the maintenance.

In this case, the wife moved a plea under Section 125 CrPc in July 2017 seeking maintenance for herself and for three minor children from her husband. The husband opposed the petition on the grounds that his wife was having adulterous relationship and that she had admitted the same in writing executed on May 19, 2005.
After his right to cite evidence was closed in July 2019, he moved an application for additional evidence for examining the handwriting by getting an handwriting expert to prove the aforesaid writing of the wife (petitioner therein).

This application was resisted by the wife arguing that the said document was well within the knowledge of the husband and despite being given sufficient opportunity to produce evidence, he intentionally moved the present application at a belated stage to fill up the gap in the case. In view of this, the application was dimissed by the trial court. Challenging the same, the husband moved to High Court.

The Court opined that “although, a discretion is vested in the trial Court to act as the exigencies of justice and circumstances of the case may require to permit a party to lead additional evidence, however, the Court added, it has also to be borne in mind that such power cannot be exercised to permit any of the parties to fill up lacuna in its case.”

The Court also noted that “since in the instant case, the petitioner-husband was well within the knowledge of the alleged writing during the filing of the maintenance plea by the wife and he had even taken an objection to the main petition to dispute the claim of the respondents for maintenance, therefore, there was no justified reason for him to now initiate the exercise of proving the writing by examining a handwriting expert after displaying inaction for a period of two years, when the case was pending in the trial Court for his evidence.”

Regarding the allegations levelled by the husband against the wife of being in an aldulterous relationship, the Court opined that maintenance can be declined, in the event, it is proved and established that the wife is living in adultery, however, “Living in adultery” means a continued adulterous conduct and not a single or occasional lapse.

The court further said that the allegation that the respondent (wife) was living in adultery way back in 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.

Thus the high court upheld the orders of the family court and dismissed the plea of the husband.

Amit Kumar Yadav v. Suman Devi and others [CRR(F)-384-2021 (O&M)]