“Adultery can often be established through circumstantial evidence, provided the circumstances lead logically to that conclusion,” the Court said.
The Kerala High Court has recently ruled that adultery within a marriage can be established on the basis of circumstantial evidence in maintenance proceedings.
Justice Kauser Edappagath observed that proceedings for maintenance under Section 125 of the Code of Criminal Procedure (CrPC) are essentially civil in nature. As a result, a spouse alleging adultery is only required to present circumstantial evidence that reasonably points to the inference of adulterous conduct.
“When the husband alleges that the wife is living in adultery and thereby disqualified from claiming maintenance, he is not required to prove the adulterous act beyond a reasonable doubt, as in criminal prosecution under the now-repealed Section 497 of IPC. Instead, proof by preponderance of probabilities is sufficient. Adultery typically occurs in secrecy, making direct proof rare. Consequently, adultery can often be established through circumstantial evidence, provided the circumstances lead logically to that conclusion,” the Court stated.
The judgment was delivered on a petition filed by a man contesting a family court order directing him to pay maintenance to his divorced wife.
The petitioner–husband argued that the wife was disentitled to maintenance on the ground that she had been living in adultery. The family court, however, rejected this contention and directed him to pay ₹7,500 per month to his former spouse.
Before the High Court, counsel for the husband argued that under Section 125(4) of the CrPC, a wife forfeits her right to maintenance if she is living in adultery, and asserted that the husband had produced adequate material to prove such conduct.
In response, counsel for the wife contended that disentitlement to maintenance under Section 125 arises only when the husband proves that the wife is continuously living in adultery, and that an isolated or occasional instance of adulterous behaviour is insufficient. It was submitted that in the present case, no evidence had been produced to establish continuous adulterous conduct on the part of the wife.
The Court observed that even the judicial precedents relied on by the husband indicate that there must be evidence of continuous adulterous conduct. Thus, the key issue to be examined was the degree of proof necessary to establish that the wife was living in adultery.
Considering that maintenance proceedings are civil in nature, the Court concluded that circumstantial evidence is sufficient to prove adultery.
“Whether a woman is living in adultery or not cannot be determined on a numerical basis. The matter is to be looked into holistically,” the Court said.
In the present case, the Court pointed out that the psychologist who had previously treated the wife had repeatedly noted that she was involved in an affair with another man. The treatment records further indicated a tendency toward extramarital relationships. It was also observed that the man with whom she was alleged to have had the affair was himself undergoing divorce proceedings. Taken together with the treatment notes and the testimonies of other witnesses, these circumstances persuaded the Court that there was sufficient material to establish habitual adulterous conduct.
“The aforementioned circumstantial evidence are sufficient to establish the factum of ‘living in adultery’ on a balance of preponderance and probabilities to defeat the claim of the respondent under Section 125 of Cr.P.C. The finding of the Family Court that the evidence on record is insufficient to prove that the respondent is living in adultery is against the settled principles of appreciation of evidence,” the Court concluded.
Accordingly, the Court overturned the family court’s order and held that the wife was not entitled to receive maintenance.