Living in Adultery and Spousal Maintenance in India

Judicial Interpretation of "Living in Adultery" as a Bar to Spousal Maintenance under Section 125(4) CrPC in India

Introduction

Section 125 of the Code of Criminal Procedure, 1973 (CrPC) stands as a pivotal social justice provision in Indian law, compelling individuals with sufficient means to provide maintenance to their wives, children, and parents who are unable to maintain themselves.[1] This secular provision aims to prevent vagrancy and destitution. However, sub-section (4) of Section 125 CrPC carves out specific exceptions, stipulating circumstances under which a wife shall not be entitled to receive an allowance from her husband. One such critical disqualification is "if she is living in adultery." This article undertakes a comprehensive analysis of the judicial interpretation of the phrase "living in adultery" within the Indian legal framework, examining its scope, the burden and standard of proof, its applicability to divorced women, and its interplay with matrimonial laws, particularly in light of the decriminalization of adultery.

The Ambit of "Wife" under Section 125 CrPC and Applicability of Section 125(4)

The term "wife" under Section 125 CrPC has been accorded a broad interpretation by the judiciary to effectuate the social purpose of the statute. Explanation (b) to Section 125(1) clarifies that "wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. The Supreme Court in Rohtash Singh v. Ramendri (Smt) And Others[1] affirmed that a divorced woman who has not remarried remains entitled to maintenance, irrespective of the grounds for divorce, emphasizing that her status as a 'wife' persists for maintenance purposes. Further, in KAMALA v. M.R.MOHAN KUMAR,[4] the Supreme Court endorsed a lenient standard of proof for marriage in Section 125 CrPC proceedings, recognizing de facto marriages arising from long-term cohabitation for the purpose of granting maintenance.

A pertinent question arises whether the disqualification under Section 125(4), including "living in adultery," applies to a divorced woman who claims maintenance under Section 125(1). The Supreme Court in Vanamala (Smt) v. H.M Ranganatha Bhatta[2] held that sub-section (4) of Section 125 does not apply to a woman who has been divorced or obtained a divorce decree, particularly where the divorce decree by mutual consent did not include maintenance. However, this view has been subject to nuanced interpretation in subsequent judicial pronouncements and legal understanding. The Kerala High Court in Mariyumma v. Mohammed Ibrahim,[15] while considering a maintenance claim by a divorced Muslim woman, proceeded on the assumption that Section 125(4) would apply if "living in adultery" was proved against her, reasoning that the Explanation (b) to Section 125(1) extends the definition of "wife" for the entire chapter, including its disqualificatory clauses. The court noted, "Evidently the object of the Explanation is to obviate repeated reference to the wife as well as the wife who has been divorced in appropriate places in the relevant sections. The operation of the explanation is only to read the term wife in Chapter IX as referring to wife as well as a divorced woman who has not remarried, if such reference would not be inappropriate."[15] This suggests that if a divorced woman is treated as a "wife" for claiming maintenance, she would also be subject to the conditions under which a "wife" is disentitled to it. The overarching principle from Rohtash Singh[1] is that a divorced woman is a "wife" for Section 125 CrPC; thus, the conditions applicable to a "wife" under Section 125(4) would logically extend to her unless specifically excluded by the context or a binding contrary precedent covering the specific facts.

Deciphering "Living in Adultery"

The judiciary has consistently interpreted the phrase "living in adultery" in Section 125(4) CrPC as connoting a continuous course of adulterous conduct, rather than isolated or sporadic acts of infidelity. It implies a state of quasi-permanent union with the adulterous partner, where the wife is essentially living with another man as if she were his wife.

Continuous Course of Conduct v. Isolated Acts

Numerous High Courts have elaborated on this distinction. The Gujarat High Court in Maganlal Budhaiabhai Patel v. Bai Dahi[5] held that "living in adultery" means "following an almost continuous course of adulterous conduct and not to a single lapse from virtue 1 or 2 lapses of virtue would no doubt be acts of adultery but are insufficient to show that the respondent was 'living in adultery'." Similarly, the Kerala High Court in T. Mercy And Others v. V.M Varughese[6] stated, "The words ‘living in adultery’ denote a continuous course of conduct as distinguished from isolated acts of immorality and mean that the woman must be living in a state of quasi permanent union with the man with whom she is committing adultery." This view was echoed by the Delhi High Court in Pradeep Kumar Sharma v. Deepika Sharma,[8] which emphasized the distinction between "committing adultery" and "living in adultery." The Bombay High Court in Pundurang Barku Nathe v. Leela Pandurang Nathe[17] opined that the expression "living in adultery" connotes a wife "living perpetually or semi perpetually as a wife with a male, other than her husband and having sexual relations with him. Sporadic instances of sexual relationship... would not fall within the ambit." The Madras High Court in Kasthuri And Others… v. Ramasamy…[23] and the Allahabad High Court in Mahesh @ Mahesh Chand v. State Of Up. & Others[22] (citing K. Veeriah v. Muthulakshmi) have also affirmed this interpretation, requiring proof of a sustained adulterous relationship.

Temporal Aspect: "Is Living"

The use of the present continuous tense "is living" in Section 125(4) CrPC is significant. Courts have generally held that the adulterous conduct must be subsisting at or around the time the claim for maintenance is made or considered. In Papammal v. Dharman,[7] the Madras High Court observed, "The clear implication from the words living in adultery... is that unless the wife is actually living in adultery at or about the time of the application, she is not disentitled to maintenance." The Gujarat High Court in Maganlal Budhaiabhai Patel[5] noted the necessity to show that "the period during which the wife was living an adulterous life was so related, in proximity of time to the filing of the petition." The Madras High Court in S.S Manickam v. Arputha Bhavani Rajam,[9] referencing Kista Pillai's case, interpreted conduct "at or about the time of the application" to mean "shortly before or shortly after the application was made, interpreting the word ‘shortly’ in a reasonable manner." Crucially, the Gauhati High Court in Md. Abdul Sattar v. State Of Assam And Ors.[19] held that a wife disentitles herself from maintenance "only during the period, when she lives in adultery. When she does not live in adultery, or when she ceases to live in adultery, even if she had lived in adultery in the past, the husband cannot refuse to maintain her on the ground that she had, in the past, lived in adultery."

Adultery: Conceptual Understanding Post-Decriminalization

Historically, "adultery" was a criminal offense under Section 497 of the Indian Penal Code, 1860 (IPC), which was struck down as unconstitutional by the Supreme Court in Joseph Shine Petitioner(S) v. Union Of India (S).[12], [14] However, the concept of adultery in matrimonial law and for the purposes of Section 125(4) CrPC is distinct and broader than the erstwhile criminal definition. As observed in Olga Thelma Gomes v. Mark Gomes[10] and M.T Carunya v. S. Joseph Chellappa,[11] adultery in the context of divorce laws (like the Indian Divorce Act) means consensual sexual intercourse during the subsistence of the marriage between one spouse and a person of the opposite sex not the other spouse. The decriminalization of adultery under IPC S.497 does not abrogate its relevance as a ground for divorce or as a disqualification for maintenance under Section 125(4) CrPC. The Supreme Court in Joseph Shine[14] acknowledged that adultery can be a ground for civil remedies, including divorce, and noted that it could be a cause or consequence of an unhappy marriage, and while its criminality was negated, its impact on matrimonial obligations remains.

Burden and Standard of Proof

The onus of proving that the wife is "living in adultery" lies squarely on the husband who makes such an allegation to resist a claim for maintenance. This principle was affirmed in cases like Papammal v. Dharman[7] and Smt. Togari Chandrakala / v. Togari Venkatesh /Petitioner.[16] The husband must adduce cogent and reliable evidence to substantiate this claim. Mere allegations or suspicions are insufficient.[16]

Regarding the standard of proof, Section 125 CrPC proceedings are quasi-criminal in nature. While some older High Court decisions or interpretations might have suggested a standard akin to "proof beyond reasonable doubt" (as mentioned in the context of *K. Veeriah* cited in *Mahesh @ Mahesh Chand*[22]), the more prevalent view in matrimonial causes, including those involving adultery as a ground for divorce, leans towards a "preponderance of probabilities," as discussed in P.J Jose v. Ali Joseph[13] concerning divorce proceedings. Given that Section 125 CrPC aims at providing speedy remedy, the proof required, while needing to be clear and convincing, may not be as stringent as in a purely criminal trial. The evidence must be sufficient to satisfy the court's conscience that the wife is indeed pursuing a continuous course of adulterous conduct. The Supreme Court in Deb Narayan Halder v. Anushree Halder (Smt),[3] though dealing with cruelty and desertion, underscored the necessity of concrete and contemporaneous evidence in maintenance claims.

Interplay with Matrimonial Proceedings and Divorce Decrees

A significant aspect is the interplay between findings in civil matrimonial proceedings (e.g., divorce petitions) and maintenance claims under Section 125 CrPC. If a competent civil court has granted a decree of divorce on the specific ground that the wife was "living in adultery" (proved as per the established definition of continuous conduct), such a finding can have a decisive impact on her claim for maintenance under Section 125 CrPC. The Madras High Court in K.Poovalagan v. J.Aruna Devi[18], [20] held that when a decree for divorce has been granted by a Civil Court on the ground of the wife living in adultery, an order for maintenance under Section 125 CrPC cannot be sustained, emphasizing that the finding of a Civil Court is generally binding on the Criminal Court in such matters. It is crucial, however, that the civil court's finding pertains to "living in adultery" as understood for Section 125(4) and not merely isolated acts of adultery which might suffice for divorce under some personal laws but not for disqualification under Section 125(4) CrPC.

Judicial Scrutiny and Policy Considerations

The interpretation of "living in adultery" under Section 125(4) CrPC reflects a judicial balancing act. On one hand, Section 125 CrPC is a measure of social justice intended to protect vulnerable wives from destitution.[1] On the other hand, Section 125(4) incorporates certain societal norms and expectations regarding marital conduct as conditions for entitlement to maintenance. The courts, by insisting on a continuous course of conduct rather than isolated lapses, ensure that the provision is not misused to deny maintenance on flimsy grounds. The requirement that the adulterous conduct be proximate in time to the maintenance application further underscores the focus on the present circumstances and needs of the wife. This careful scrutiny prevents the weaponization of past conduct to escape a legitimate maintenance obligation, aligning with the provision's protective and preventive objectives.

Conclusion

The judicial interpretation of "living in adultery" under Section 125(4) CrPC in India is well-settled on several key aspects. It unequivocally means a continuous and habitual course of adulterous conduct, akin to a quasi-permanent union, and not mere sporadic or isolated acts of infidelity. The conduct must be subsisting at or around the time of the maintenance application. The burden of proving such conduct lies heavily on the husband, and the evidence must be clear and convincing. While the decriminalization of adultery under Section 497 IPC has altered its criminal law status, adultery remains a significant factor in civil matrimonial law, including as a ground for divorce and as a bar to maintenance under Section 125(4) CrPC. A definitive finding of "living in adultery" by a competent civil court in divorce proceedings can disentitle the wife to maintenance. The courts continue to apply these principles with a view to upholding the social justice objectives of Section 125 CrPC while giving effect to the legislative intent behind the disqualifications enumerated in sub-section (4).

References

  1. Rohtash Singh v. Ramendri (Smt) And Others (2000 SCC 3 180, Supreme Court Of India, 2000)
  2. Vanamala (Smt) v. H.M Ranganatha Bhatta . (1995 SCC 5 299, Supreme Court Of India, 1995)
  3. Deb Narayan Halder v. Anushree Halder (Smt) . (2004 SCC CRI 164, Supreme Court Of India, 2003)
  4. KAMALA v. M.R.MOHAN KUMAR (2018 SCC ONLINE SC 2121, Supreme Court Of India, 2018)
  5. Maganlal Budhaiabhai Patel v. Bai Dahi . (Gujarat High Court, 1969)
  6. T. Mercy And Others v. V.M Varughese And State, Cr. Petitioners. (Kerala High Court, 1967)
  7. Papammal v. Dharman (Madras High Court, 1970)
  8. Pradeep Kumar Sharma v. Deepika Sharma . (Delhi High Court, 2022)
  9. S.S Manickam v. Arputha Bhavani Rajam . (Madras High Court, 1979)
  10. Olga Thelma Gomes v. Mark Gomes . (Calcutta High Court, 1959)
  11. M.T Carunya v. S. Joseph Chellappa (Madras High Court, 1995)
  12. Joseph Shine Petitioner(S) v. Union Of India (S) (Supreme Court Of India, 2018) [Reference to the summary provided, assuming it's one of the two Joseph Shine entries]
  13. P.J Jose v. Ali Joseph (Kerala High Court, 1990)
  14. Joseph Shine Petitioner(S) v. Union Of India (S). (Supreme Court Of India, 2018) [Reference to the summary provided, assuming it's the other Joseph Shine entry]
  15. Mariyumma v. Mohammed Ibrahim (1978 SCC ONLINE KER 98, Kerala High Court, 1978)
  16. Smt. Togari Chandrakala / v. Togari Venkatesh /Petitioner. (1993 SCC ONLINE AP 483, Andhra Pradesh High Court, 1993)
  17. Pundurang Barku Nathe v. Leela Pandurang Nathe & Another (1997 SCC ONLINE BOM 264, Bombay High Court, 1997)
  18. K.Poovalagan v. J.Aruna Devi (Madras High Court, 2015) [First instance of this case in materials]
  19. Md. Abdul Sattar v. State Of Assam And Ors. Opposite Parties. (2008 SCC ONLINE GAU 558, Gauhati High Court, 2008)
  20. K.Poovalagan v. J.Aruna Devi (Madras High Court, 2015) [Second instance, likely refers to the same case for different points]
  21. V. Ganesh v. Maya Sundari (Kerala High Court, 1970)
  22. Mahesh @ Mahesh Chand v. State Of Up. & Others (Allahabad High Court, 2016)
  23. Kasthuri And Others… v. Ramasamy…. (Madras High Court, 1978)