IMPORTANT POINT
A divorced wife, who lives in adultery, viz., living in illicit relationship with man other than her former husband is disqualified from claiming maintenance, under Section 125 of the Code.

S.Nagamuthu, J.—An interesting question, as to whether a woman, against whom a decree dissolving her marriage has been passed by the Civil Court on the ground of adultery, is entitled for maintenance under Section 125 of the Code of Criminal Procedure from her divorced husband, has arisen for consideration.

2. In this case, the respondent herein is the divorced wife of the petitioner. The marriage between them was celebrated on 01.02.1998, as per the Hindu Rites and Customs. Out of the said wedlock, they have got children also. Shortly, after sometime of the marriage, there arose misunderstanding between them and the marital life was not successful. The petitioner alleged that even prior to the marriage, the respondent was living a wayward life, which she continued even after her marriage. In short, according to the petitioner, the respondent was living in adultery. On the said ground, the petitioner filed H.M.O.P.No.571 of 2009, before the Family Court, Madurai, seeking divorce. The respondent remained ex-parte in the case. Consequently, the Civil Court granted decree for divorce dissolving the marriage, precisely on the ground that the respondent was living in adultery. During the pendency of the said matrimonial dispute before the Family Court, the respondent filed M.C.No.2 of 2010 before the learned Chief Judicial Magistrate, Ramanahtapuram, claiming maintenance under Section 125 of the Code of Criminal Procedure, [for brevity, “the Code”], at the rate of Rs.2,500/- per month.

3. Before the Chief Judicial Magistrate, the respondent herein alleged that the petitioner herein had developed illicit intimacy with his sister’s daughter, by name, Muthulakshmi and the petitioner wanted consent from the respondent for marrying the said Muthulakshmi, as his second wife. Since the respondent was consistently refusing to give consent, she was harassed and sent out of the matrimonial home, she alleged. She further alleged that the allegation that she was living in adultery, as contended in H.M.O.P.No.571 of 2009, was utter false. She further alleged that despite the decree for divorce granted by the Civil Court, as the divorced wife, she is entitled for maintenance. She further contended that the petitioner is in Government Service with a monthly salary of Rs.15,000/- per month and therefore, he is liable to pay a sum of Rs.2,500/- to her towards her maintenance.

4. During the trial of the said case before the learned Chief Judicial Magistrate, the respondent herein examined herself as PW-1 and as many as three documents were exhibited, i.e., the statement made by the petitioner herein before the police in connection with an enquiry held into a petition presented by the respondent, a copy of the statement made by the respondent before the police and a copy of H.M.O.P.No.571 of 2009. On the side of the petitioner herein, he examined himself as RW-1, wherein he had reiterated his stand that the respondent was living in adultery and that she was not, therefore, entitled for maintenance. One Mr.Muthuramalingam was examined as RW-2, who has spoken about the panchayat held to resolve the matrimonial dispute between the petitioner and the respondent, in which, according to him, Sreethana properties were taken back by the respondent and she expressed her desire to live separately. According to him, EX-P1 is the written undertaking given by the respondent; EX-P2 is the acknowledgement for having taken back the Sreethana properties; EX-P3 is the LIC Policy and EX-P4 is the marriage invitation of Mrs.Muthulakshmi.

5. During the pendency of the trial of the maintenance case, the Civil Court granted decree for divorce in H.M.O.P.No.571 of 2009, on 12.03.2010. Having considered all the above evidences, the Trial Court, by order dated 21.09.2011 dismissed M.C.No.2 of 2010. Aggrieved over the same, the respondent filed a Revision before the learned Principal District and Sessions Judge, Ramanathapuram, in Cr.RC.No.22 of 2011. The learned Principal Di