The Delhi High Court has reaffirmed that the provisions of Section 125 (4) of the Code of Criminal Procedure apply only to continuous and repeated acts of adultery or cohabitation in adultery.

According to Section 125(4) of the CrPC, no wife is entitled to an allowance from her husband if she is living in adultery, refuses to live with her husband for no good cause, or if they are living separately by mutual consent.

The law on maintenance, according to Justice Chandra Dhari Singh, is a welfare statute that exists to ensure that the wife, children, and parents of an able and capable man are not left destitute in circumstances when they are unable to support themselves.

The Court was hearing a criminal revision petition seeking to set aside the order and decision issued by the Family Court on July 31, 2020. From 14 February 2012 to 28 February 2013, the Court ordered Rs. 6000 per month in maintenance, Rs. 6000 per month from 1 April 2014 to 31 December 2015, Rs. 7000 per month from 1 January 2016 to 31 July 2020, and Rs. 15,000 per month from 1 August 2020 to the wife’s death or remarriage.

The petitioner’s and respondent-marriage wife was solemnized on April 9, 2000. However, due to a number of disagreements between the parties, both parties filed criminal and civil proceedings, complaints, and FIRs against one other.

This was the petitioner’s situation. The assailed Order was discovered to be clearly incorrect and irrational, and so liable to be overturned. It was claimed that in issuing the challenged Order, the Family Court failed to grasp the evidence, other material on record, and the provision under section 125 of the CrPC.

It was argued that the wife was more than capable of supporting herself and earning enough money to do so, and the fact that she worked during the case’s pendency was also acknowledged by her during cross-examination. It was maintained that the application under section 125 of the CrPC was not maintainable in the first instance because the wife had sufficient resources to support herself.

The respondent contended that the petitioner’s charge of adultery against the wife was an afterthought and that there was no evidence to support the allegation of adultery against her.

“The grant of maintenance by a husband towards his wife, children, and parents is subject to the conditions laid down in the provision. Regarding maintenance to wife, it is evident that a husband must provide maintenance as awarded to the wife when she is unable to maintain herself, and only if the exceptions mentioned above are existing, can the husband escape his duty of paying maintenance,” the Court observed.

The Court stated that the law derived from numerous Supreme Court and High Court decisions establishes the position of maintenance payment, ruling that cruelty does not deprive the wife of her right to maintenance.

“Even in cases where divorce is granted on the ground of cruelty, Courts have awarded permanent alimony to the wife and there is no bar of cruelty in the right of the wife to claim maintenance,” the Court said.

As a result, the Court concluded that the ground of cruelty and harassment was insufficient to justify the nonpayment of the support amount.

The Court also stated that in order to invoke the provision under section 125(4) of the CrPC, the husband must prove that the wife has been living in adultery with clear evidence, and that one or two isolated acts of adultery do not constitute “living in adultery”.

“Hence, it is found that the law, as interpreted by the High Courts of the Country, evinces that only continuous and repeated acts of adultery and/or cohabitation in adultery would attract the rigors of the provision under Section 125 (4) of the Cr. P.C,” the Bench said.

It added “The law of maintenance of the country, including Section 125 of the CrPC is welfare laws that exist to ensure that the wife, children, and parents of an able and capable man are not left to become destitute in cases when they are not capable of maintaining themselves. However, the recent practice has become to abuse the process of law and escape the liability that is imposed upon the husband on contentions that hold no ground.”

The Court stated that the current case was one of those in which the parties had filed multiple complaints and criminal cases with no results.

“The order of maintenance has been challenged despite there being a clear mandate of law regarding all the questions led by the petitioner. In light of the mandate of law under Section 125 of the CrPC, the observations of the High Courts, and the facts and circumstances of the present matter, this Court is not inclined to allow the instant petition, since the petitioner has failed to show any ground for challenging the order under the revisional jurisdiction of this Court,” the Court said.

As a result, the Court dismissed the petition for review and upheld the contested order.