A wife living in adultery is not entitled to maintenance if proven by continuous evidence; mere isolated incidents are insufficient.

ORDER :

Kauser Edappagath, J.

This revision petition has been filed challenging the order of maintenance granted by the Family Court, Muvattupuzha, in a proceedings under Section 125 of Cr.P.C.

2. The petitioner herein is the husband of the respondent. Their marriage was solemnised on 12.09.2003. After a few years of marriage, marital disputes arose between them. The petitioner filed an original petition for divorce before the Family Court, Muvattupuzha, as O.P.No.918/2019. It is submitted that it was allowed, and divorce was granted. The respondent filed M.C. No.135/2020 in the same court, invoking Section 125 of Cr.P.C., claiming maintenance at the rate of Rs.25,000/- per month. The petitioner resisted the claim mainly on the ground that the respondent is living in adultery and hence she is disentitled to claim maintenance under sub- section (4) of Section 125 of Cr.P.C. The Family Court did not accept the said contention and allowed the maintenance case, directing the petitioner to pay maintenance at the rate of Rs.7,500/- per month to the respondent as per the impugned order.

3. I have heard Sri.A. Rajasimhan, the learned counsel for the petitioner, and Sri.T.K. Rajeshkumar, the learned counsel for the respondent.

4. The learned counsel for the petitioner submitted that the impugned order is illegal and unsustainable as it is against the provisions of Section 125 (4) of Cr.P.C., which clearly says that no wife shall be entitled to receive an allowance for maintenance from her husband if she is living in adultery. The learned counsel further submitted that sufficient evidence has been let in by the petitioner to prove that the respondent is living in adultery, and that evidence was overlooked by the Family Court without any reason. The learned counsel also submitted that the finding of the Family Court that there is no evidence to show that the relationship, if any, between the respondent and the so-called adulterer is not an adulterous one is contrary to the evidence on record. On the other hand, the learned counsel for the respondent submitted that a wife is disentitled to maintenance under Section 125 of Cr.P.C., only if the husband proves that she is living in adultery continuously, and a single or isolated instance of adulterous act is not sufficient. Reliance was placed on the decisions of this Court in T.Mercy and Others v. V.M.Varughese and State (1967 SCC OnLine Ker 95), Sheela v. Albert Hemson (2015 SCC OnLine Ker 1226), K.Shyamala v. Purakkanath Balakrishnan (2019 SCC OnLine Ker 3056), Rupa v. Puthalath Anil Kumar [2021 (2) KLT 239], Nesamma v. Manuvel Hentry (1961 KLT 964), Sandha v. Narayanan [1999 (1) KLT 688]; the decision of the Madhya Pradesh High Court in Amit Kumar Khodake v. Madhuri (2025 SCC OnLine MP 976) and the decision of the Patna High Court in Bulbul Khatoon and Another v. State of Bihar and Another (2025 SCC OnLine Pat 2379). The learned counsel further submitted that there is absolutely no evidence on record to show that the respondent is continuously living in adultery and hence the Family Court has rightly granted maintenance to the respondent.

5. Section 125 of Cr.P.C. (Section 144 of BNSS)states that a husband with sufficient means is liable to provide maintenance to his wife who cannot support herself. However, the wife's right to claim maintenance is not absolute. Sub- Section (4) of Section 125 (Section 144(4) of BNSS) clearly specifies that a wife living in adultery is not entitled to claim maintenance. The dictum laid down in all the decisions cited by the learned counsel for the petitioner and referenced earlier is that a single instance of adulterous conduct is not enough to disqualify a wife from claiming mainten