The High Court also said that meager income of the husband cannot be a criteria to deny maintenance
The Madhya Pradesh High Court recently held that a wife’s affection for another man does not amount to adultery unless it involves a physical relationship.
Justice GS Ahluwalia stressed that adultery must necessarily include sexual intercourse.
Accordingly, the judge rejected a husband’s claim that his wife’s emotional attachment to another person rendered her ineligible for maintenance.
The Court clarified that under Section 144(5) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) and Section 125(4) of the Code of Criminal Procedure (CrPC), maintenance can only be denied if it is established that the wife is living in adultery.
“Adultery necessary means sexual intercourse. Even if a wife is having a love and affection towards somebody else without any physical relations, then that by itself cannot be sufficient to hold that the wife is living in adultery,” the Court said in the judgment dated January 17.
The Court was considering a revision petition filed by the husband, challenging a family court’s order directing him to pay ₹4,000 as interim maintenance to his wife. He contended that he works as a Ward Boy and earns only ₹8,000.
He further argued that his wife was already receiving ₹4,000 under an order issued under Section 24 of the Hindu Marriage Act, making the additional ₹4,000 awarded under Section 125 of the CrPC excessive.
However, the Court observed that the salary certificate from the hospital where the husband is employed was not duly proven.
“In the said certificate, the place of issuance and date of issuance are not mentioned. Therefore, unless and until that salary certificate is duly proved by the authorities who has issued the same, it is difficult for this Court to rely on the said certificate at this stage.”
Furthermore, the Court observed that the man did not assert any physical inability to earn.
“Meager income of the husband cannot be a criteria to deny maintenance. If the applicant has married a girl knowing fully well that he is not competent to even fulfil his own daily needs then for that he himself is responsible but if he is an able bodied person then he has to earn something to maintain his wife or to pay the maintenance amount,” the single-judge said.
The Court also dismissed the husband’s claim that his wife was earning an income from running a beauty parlour.
“The applicant has not filed any document to show that the wife of the applicant is having any property where she can run a beauty parlour. The applicant has not filed any document to show that how much money she is earning from that beauty parlour. The matter is yet to be decided by leading evidence. Mere bald submission that wife is running a beauty parlour is not sufficient to deny interim maintenance to her, specifically when no document has been filed to show that either the wife of the applicant is running a beauty parlour in a shop owned by her or in a shop taken by her on a rent,” it said.
Addressing the man’s claim of being dispossessed of his family properties, the Court observed that he continues to reside with his father and dismissed the public notice of dispossession as a mere façade.
The Court further speculated that the notice may have been issued based on legal advice.
Regarding maintenance, the Court reaffirmed the well-established legal principle that a wife is entitled to maintenance under all applicable statutes.
“Since the court below has taken note of the maintenance awarded to the respondent under Section 24 of the Hindu Marriage Act therefore, it cannot be said that the trial court committed a material illegality by awarding interim maintenance @ Rs.4,000,” the Court ruled.
As a result, the Court dismissed the criminal revision petition.
