No maintenance for women if divorce is due to adultery: HC

Source: Hindustan Times dated 26.12.2019

-- K A Y Dodhiya

The Bombay high court (HC) recently upheld an order of a lower court which cancelled the maintenance being paid to a divorced woman on the grounds that the divorce was granted after an allegation of adultery had been proved against her.

On December 18, the HC bench held that if adultery was not proved, the woman could have claimed a right to maintenance after divorce, but as that was not the case the lower court order of cancelling maintenance was valid.

The bench of justice Nitin Sambre, while hearing a criminal writ petition filed by the woman, was informed that the couple got married in 1980.

However, in 2000 the husband had sought a divorce under section 13 of The Hindu Marriage Act,1955 on the grounds that his wife had committed adultery, which was granted.

However, as the divorce order was challenged by her, the husband was directed to pay maintenance to the wife and their son.

In 2010, the wife filed an application for enhancement of the maintenance amount while the husband filed a counter application to cancel the maintenance amount in the magistrate’s court.

The lower court allowed the wife’s application while rejecting the husband’s application and directed him to pay more than three times the amount he was paying for the wife and almost eight times for the son.

Aggrieved by the magistrate’s order, the husband applied for a revision application which was allowed by the additional sessions judge at Sangli in 2015.

The judge at the lower court, in his order, had observed that as the allegation of adultery was proved against the wife and divorce was granted as per the statutory embargo under sub-section (4) of section 125 of The Hindu Marriage Act,1955, the wife was not entitled to maintenance.

Interpretation of the section says,“If the allegations of adultery are proved against such a woman or in spite of the husband being ready to maintain her, she refuses to cohabit the wife can be refused payment of maintenance.”

Based on the above submissions and interpretations, Sambre said, “Considering the expressed embargo on the right of the petitioner to claim maintenance particularly, divorce was ordered on April 27, 2000, based on the allegation of adultery, the court below has rightly held that the petitioner-wife is not entitled to maintenance.”