The Patna High Court has recently observed that isolated lapses or moral failings on the part of a wife do not automatically disqualify her from claiming maintenance under Section 125 of the Code of Criminal Procedure (Cr.PC). Justice Jitendra Kumar, presiding over the case, clarified that there is a difference between acts of adultery and “living in adultery.” 

 Justice Jitendra Kumar observed, “Living in adultery” denotes a continuous course of conduct and not isolated acts of immorality. One or two lapses from virtues may be acts of adultery, but would not be sufficient to show that the woman was “living in adultery”. A few moral lapse 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.”

He stated, “any physical relationship of a lady with any person prior to her marriage does not come within the definition of “adultery” because adultery is an offence against one’s spouse. 

However, adulterous life of any wife subsequent to her marriage is undoubtedly a disqualification for any married wife to get maintenance from her husband. However, “Living in adultery” denotes a continuous course of conduct and not isolated acts of immorality.”

The case arose from a maintenance order of the Principal Judge, Family Court, Bhagalpur which directed the husband to pay Rs. 3,000 per month to the wife and Rs. 2,000 per month to their minor daughter. The husband challenged the order, claiming his wife had committed adultery and that the child was not his biological daughter. The court examined these claims and found the petitioner had not provided any substantial evidence.

The Court pointed out, “In the case on hand, I find that the petitioner-husband has not made any specific pleadings regarding adulterous life of his wife-Soni Devi. He was required to give details of the adulterous life of his wife with reference to time and place beside giving the name of the adulterer. But I find that in his pleadings and evidence, except bald allegation that his wife was having illicit relationship with her brother-in-law, viz., Vishnudeo Sah prior and subsequent to the marriage, there is no specific details regarding such life of his wife.”

Hence, the Court held, “I find that there is no doubt about entitlement of Soni Devi to get maintenance from her husband/petitioner herein.” Further, on the issue of paternity, the court referred to Section 112 of the Evidence Act, according to which, a child born during continuation of a valid marriage between his/her mother and any man, the child is held to be legitimate son/daughter of that man, unless it is shown by that man that he had no access to his wife at any time when the child could have been conceived.

The court also pointed out that the petitioner had never filed any matrimonial petition before Family Court or any Civil Court regarding declaration in regard to paternity of the child, and hence it held, “tthat O.P. No.3/Gudiya Kumari is also entitled to get maintenance from the petitioner/Avadh Kishore Sah as his legitimate minor daughter.”

 The court also held that the quantum of maintenance awarded by Family Court was not excessive in view of the requirement of the divorced wife and the child as well as income of petitioner as per the evidence on record. Accordingly, the petition was dismissed. 

Case Title: Awadh Kishore Sah vs. The State of Bihar & Ors.