The High Court also said that meager income of the husband cannot be a criteria to deny maintenance
The Madhya Pradesh High Court recently ruled that a wife’s love and affection for another man does not constitute adultery unless it involves a physical relationship.
Justice GS Ahluwalia emphasized that adultery must necessarily include sexual intercourse.
Accordingly, the judge dismissed a husband’s claim that his wife’s affection for another person disqualified her from receiving maintenance.
The Court stated 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 proven 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 hearing 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 argued that he works as a Ward Boy and earns only ₹8,000.
It was also submitted that she was already receiving ₹4,000 under an order passed under Section 24 of the Hindu Marriage Act, making the additional ₹4,000 awarded under Section 125 of the CrPC excessive.
However, the Court noted that the salary certificate issued by 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.”
Additionally, the Court noted that the man did not claim to be physically incapable of earning.
“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 rejected the husband’s assertion that his wife was earning an income by operating 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.
Regarding the man’s claim that he had been dispossessed of his family properties, the Court noted that he continues to reside with his father and termed the public notice of dispossession as a mere façade.
The Court further suspected that the notice might have been issued based on legal advice.
On the issue of maintenance, the Court reiterated the well-established legal principle that a wife is entitled to maintenance under all relevant 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.
Consequently, it dismissed the criminal revision petition.