- In Sh. Pradeep Kumar Sharma vs Smt. Deepika Sharma the Hon’ble Delhi HC has held that the only continuous and repeated acts of adultery would attract the rigours of section 125(4) of CrPC.
- Section 125(4) of CrPC provides that no wife would be entitled to maintenance if she is living in adultery, or if she refuses to live with her husband without sufficient cause, or both the husband and the wife are living separately by mutual consent.
- The instant criminal revision petition was filed seeking to set aside the order and judgement dated 31-7-2020 passed by the Family Court. The marriage of the petitioner and the respondent was solemnised on 9-4-2000 according to Hindu rites and ceremonies and two children were born out of the wedlock. But due to several disputes amongst the parties, several civil and criminal cases were filed by both the parties against each other.
- This petition was filed against the order of the Family Court wherein the Court had granted the maintenance of Rs.6000 per month from 14-2-2012 to 28-2-2013, Rs.6000 per month from 1-4-2014 to 31-12-2015, Rs.7000 per month from 1-1-2016 to 31-7-2020 and Rs. 15,000 per month from 1-8-2020 till the life of the respondent or her marriage.
- The Counsel for the petitioner submitted that the order of the Family Court was wrong and perverse, and was hence liable to be set aside. The Court had failed to appreciate evidence and the provisions of section 125 CrPC while passing the impugned order. It was argued that the respondent was capable of maintaining herself, and she had herself admitted to having a job during the pendency of the case during her cross examination.
- It was also argued that the respondent had left the petitioner’s company and had started to live separately without citing any cogent reason. The Family Court also failed to appreciate the misconduct and misdemeanour of the respondent while passing the order.
- The Counsel for the petitioner also argued that the question of adultery was not appreciated correctly. It was argued that the son of the parties clearly stated that he along with his mother, started living with a man named Pankaj Arya since 2014 and that the respondent and Mr. Pankaj Arya were living together as husband and wife.
- The Hon’ble HC observed that the law emanating from the various decisions of the Apex Court and various HCs have clearly established that the right to maintenance cannot be forfeited merely on the grounds of cruelty. Even in cases in which the Courts have granted divorce on the ground of cruelty, the Courts have awarded permanent alimony to the wife.
- As regards the ground of adultery, the Court observed that the petitioner had not taken up this argument himself, he did not add the ground to his pleadings, nor was the respondent put to notice about the alleged adultery. The petitioner failed to establish that the respondent was living with Pankaj Arya, and was not even cross examined to confirm his version. The ground was brought about at a later stage and the respondent was not cross-examined on the question of adultery.
- The Court observed that in order to extract the provision under section 125(4) of CrPC, the husband has to establish with definite evidence that the wife has been living in adultery, and one or two isolated incidents would not amount to ‘living in adultery’.
- The Court referred to the decision of the Bombay HC in the case of Pandurang Bakru Nathe vs leela Pandurang Nathe and anr (1997) SCC wherein the Court had observed that ‘living in adultery’ connotes a wife living perpetually or semi-perpetually with a man other that her husband and having sexual relations with him. Sporadic incidents of sexual relationship between a wife and another man cannot fall within the ambit of ‘living in adultery’.
- The same view has been taken in various other cases like Sandha vs Narayanan (1999) SCC, Ashok vs Anita (2011) SCC and Sukhdev Pakharwal vs Rekha Okhle (2018) SCC.
- Thus, the HC observed that the petitioner was unable to establish the fact that his wife was living in adultery. The Court also observed that the petitioner had filed for divorce on the ground of the alleged cruelty by the respondent, while at the same time stating that the respondent had deserted him and had left his company without any reason. The two grounds cannot coexist. Therefore the second ground of the petitioner also could not be established to contend that the respondent was not entitled to any maintenance.
- The Court upheld the Family Court’s decision and the petition was accordingly disposed of.
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