Wife Can Be Debarred From Getting Maintenance Only If She Is Actually Living In Adultery At Or Around The Time Of Application U/S. 125 CrPC: MP High Court
The Madhya Pradesh High Court held that the wife can be debarred from getting the maintenance under Section 125 of the Code of Criminal Procedure only if she is living in adultery at or around the time of filing the application.
The Husband filed a revision petition against the order passed by the Family Court, whereby the court partly allowed the application filed by the Wife under Section 125 Cr.P.C. and awarded Rs. 10,000/- per month maintenance to the wife.
The Bench of Justice Prakash Chandra Gupta observed “According to explanation (b) of Sub-Section 1 of Section 125 of Cr.P.C., the term “wife” includes a woman, who has been divorced by her husband and has not remarried. From the analysis of the provision and case laws discussed above, it is apparent that the adultery u/S 125(4) of Cr.P.C. has to be continuous and the liability to prove the same is upon the husband in order to debar wife from getting maintenance. The wife can be debarred from getting maintenance on the ground of “adultery” only when she is actually “living in adultery” at or around the time of application for maintenance under S. 125 of Cr.P.C.”
Advocate Abhijeet Dube appeared for the Petitioner while Advocate Anil Kumar Dawale appeared for the Respondent.
In the present case, the Husband pleaded that the Wife used to have obscene talk with another man at night hours. Currently, she is residing with him. He also produced a few photographs of the Wife but without the certification as provided under Section 65-B of the Indian Evidence Act of 1872.
The Court perused the facts and stated “At current as well, she is residing with him at Bhopal, but the petitioner (DW-1) has not stated anything in his statement that the respondent is living in adulterous life with Chetan Pathak continuously. Petitioner even could not dare to ask about the same in the cross-examination of the respondent/wife (PW-1). It is established law that mere pleading cannot take place of proof without evidence. Therefore, in absence of evidence, it is not proved that the respondent/wife is living in adultery with Chetan Pathak .”
The Court observed that it was not explained by the Husband by which mobile phone, by whom and when the photographs were clicked. On this the Court observed “Thereafter, even on being required by the learned trial Court to furnish a certificate u/S 65 B of the Evidence Act, the petitioner failed to do so. It appears from the exhibits photograph (Ex. D-2 – D-15) that the photographs were sent by Rashmi Pathak but the petitioner has not examined Rashmi Pathak in his support. Therefore, on the basis of aforementioned photographs, it cannot be concluded that the respondent is living in adultery with Chetan Pathak.”
The Court concluded that to prove the photographs, compliance with certification is not mandatory but in the present case, there is no specific pleading of the Husband in respect of the adulterous life of the wife as well as there is a lack of evidence. It was further held that only based on the aforementioned photographs, it cannot be assumed that the wife is living in adultery with Chetan Pathak and therefore, she cannot be barred from claiming maintenance on the ground of adultery as provided u/S 125(4) of Cr.P.C.
Accordingly, the Court dismissed the petition as being sans merits.
Cause Title: ABC v. XYZ
Appearances:
Petitioner: Advocate Abhijeet Dube
Respondent: Advocate Anil Kumar Dawale