High Court of Himachal Pradesh

Krishan Lal v Champa Devi (Neutral Citation: 2024:HHC:5582)

MANU/HP/1476/2024

22.07.2024

Family

Condition that a wife is not entitled to maintenance if she is living in adultery will apply, when the matrimonial relations subsist and not after the divorce

A divorce petition filed by the Petitioner-husband was allowed on the grounds of desertion, cruelty and adultery and a decree of divorce was granted on 26.02.2007. After the passing of decree of divorce, Judicial Magistrate First Class had passed an interim order of maintenance in favour of the wife awarding ₹1,000/- per month. The revision filed by Petitioner for assailing the order was dismissed. The wife filed an application under Section 128 of the Code of Criminal Procedure, 1973 (Cr.PC) for enforcing the order dated 07.01.2009. The Petitioner filed an objection petition stating that the wife was living in adultery and she is not entitled to maintenance in view of Section 125(4). The learned trial court held that the interim order of maintenance was passed despite the decree of divorce. Hence, the Court is bound to execute the order unless it is varied or vacated. Hence, the present petition was filed by the husband. The issue involved in the case is that whether the divorced wife is entitled to maintenance if she is living in adultery?

The court cited a judgment pronounced by the Hon’ble Supreme Court in Rohtash Singh vs. Ramendri and Ors., MANU/SC/0147/2000
wherein, it was held that a wife is not entitled to maintenance from her husband if she is living in adultery, she has refused to live with her husband or they are living separately by mutual consent. These conditions will apply when the matrimonial relations subsist and not after the divorce.

Thus, the court observed that, in view of the binding precedents of the Hon’ble Supreme Court, the plea that a divorced wife is not entitled to maintenance if she is living in adultery is not acceptable. The petition has been dismissed.

Tags : Maintenance Adultery Divorce

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