“Single instance of Adultery does not disentitle the Wife to Maintenance under Section 125(4) of the Cr.P.C: HC of MP while Interpreting Adultery”

Case title: Vijendra v. Rekhabai & Anr.

Case no.: Criminal Revision No.790 of 2019

Dated on: 15th April 2024

Quorum: Justice Prem Narayan Singh


In the realm of family law, the issue of maintenance often stands at the forefront, especially in cases where divorce has been granted on grounds such as adultery. The case in question, brought before the court as a criminal revision petition under Section 19(4) of the Family Courts Act read with Section 397 of the Cr.P.C., revolves around the award of maintenance to the respondent and her daughter by the learned Principal Judge, Family Court, Dhar M.P. The petitioner, aggrieved by the judgment, seeks a reduction in the maintenance amount.

The petitioner, having obtained a divorce decree on the grounds of adultery, contends that the respondent, his former wife, is disqualified from claiming maintenance. The learned trial Court had awarded Rs. 3000/- per month each to the respondent and their daughter. The petitioner bases his argument on the findings of adultery by the family court and cites precedents from the Madras and Karnataka High Courts to support his claim.

On the other hand, the respondent, while acknowledging her subsequent marriage, denies the accusations of adultery, asserting that mere allegations without substantial evidence cannot disqualify her from receiving maintenance. She relies on a judgment of the Delhi High Court to argue that only continuous and repeated acts of adultery warrant the disqualification from maintenance.


The petitioner’s counsel argues that the decree of divorce, based on the finding of adultery, is conclusive evidence of the respondent’s disqualification from maintenance. He cites precedents from the Madras and Karnataka High Courts to reinforce this argument.

M.Chinna Karuppasamy vs. Kanimozhi wherein, the Court has observed that “A divorced wife, who lives in adultery, is disqualified from claiming maintenance under Section 125 of Cr.P.C.”

Shanthakumari vs. Thimmegowda wherein the Court has observed that “the oral and documentary evidence produced clearly establish that the petitioner is not honest towards husband and she has got extramarital affairs with neighbour Mahesh and all along, she asserted that she used to stay with him. When the petitioner is staying in adultery, the question of she claiming maintenance does not arise at all. the contention of the petitioner that the petitioner is a legally wedded wife and entitled for maintenance cannot be accepted in view of the conduct of petitioner, who is not honest and is leading adulterous life.”


The respondent’s counsel refutes the allegations of adultery, emphasizing the lack of substantial evidence to support such claims. She contends that even if adultery occurred, it does not automatically disqualify the respondent from receiving maintenance, as per precedents set by the Delhi High Court.

Sh. Pradeep Kumar Sharma vs. Smt. Deepika Sharma, wherein the Court observed that “only continuous and repeated acts of adultery or cohabitation in adultery would attract the rigours of the provisions under Section 125(4) of Cr.P.C.”


Section 19(4) of the Family Courts Act: This provision allows for the filing of revision petitions against judgments passed by Family Courts.

Section 397 of the Cr.P.C. (Code of Criminal Procedure): This provision grants the power of revision to higher courts over proceedings in subordinate courts.

Section 125(4) of the Cr.P.C.: This provision deals with the disqualification of a wife from receiving maintenance if she is “living in adultery.”

Section 41 of the Indian Evidence Act: This provision states that a judgment or decree on a particular matter, having attained finality, is relevant evidence for deciding similar matters in subsequent cases.


  • Whether the finding of adultery, leading to divorce, disqualifies the respondent from claiming maintenance.
  • What constitutes “living in adultery” as per the relevant legal provisions.
  • Whether the maintenance awarded by the trial court is excessive or justified.


The court delves into the legal precedents cited by both parties to ascertain the definition and implications of adultery in maintenance cases. It emphasizes the distinction between isolated acts of adultery and continuous, repeated conduct, which is necessary to disqualify a spouse from maintenance.

In Ashok v. Anita, the HC of Madhya Pradesh interpreting the said provision and observed as reproduced –

A perusal of the provisions of section 125(4) of Cr. P.C. makes it clear that a stray act of adultery on the part of the wife does not amount to adultery within the meaning of section 125(4) and further does not disentitle the wife to maintenance.

Relying on the principles laid down by various High Courts, including the Madhya Pradesh High Court, the court concludes that mere allegations or isolated acts of adultery are insufficient to deny maintenance. It reaffirms that the term “living in adultery” implies a continuous adulterous conduct rather than occasional lapses.

In light of the evidence and legal precedents, the court finds no grounds to interfere with the trial court’s judgment. It upholds the maintenance awarded to the respondent and her daughter, considering the prevailing circumstances and the principles of justice.

The case serves as a significant interpretation of the legal provisions surrounding maintenance in cases of adultery. It underscores the importance of continuous, repeated conduct in establishing disqualification from maintenance, while also emphasizing the need for substantial evidence to support such claims. In upholding the trial court’s decision, the judgment ensures fair treatment and support for the dependent parties involved.

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Judgement Reviewed by – Chiraag K A

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Madhya Pradesh High Court: A woman cannot request maintenance from her second husband under Section 125 CrPC if her first marriage survives.

Case title: Durga Bai Versus Keval singh

Case No: Criminal No.230/2015

Decided on : 13-05-2017

Quorum: Judge Prem Narayan Singh

Facts of the case:

The circumstances are that in 2009, petitioner No. I and respondent were married in accordance with Hindu customs. Following their marriage, Chanchal, their baby, was born into their union. For both respondent/Keval Singh and petitioner No. 1/Durga Bai, this was their second marriage. Durga Bai and Bhagwan Singh, a native of Village Lalpuria, had previously been married, but Bhagwan Singh had left Durgabai to get into a second marriage. In accordance with social customs and ceremonies, Bhagwan Singh granted a divorce. Following their divorce from Bhagwan Singh, Petitioner No. l/Durgabai entered into a second marriage with Respondent Keval Singh. Following that, Durgabai was teased by the respondent/Keval Singh’s parents over her demand for a dowry, and Keval Singh used to beat her. The petitioner was forced to leave the house due to the respondent’s abusive conduct, and as of April 2015, she was living in her brother’s Rajgarh home. This revision has been filed because the petitioner No. I, who is only a housewife and unemployed woman, submitted an application for maintenance under Section 125 of the Cr.P.C. and the Family Court rejected it.

Legal provisions:

Sections 5 & I l of Hindu Marriage Act is relevant to quote here :

Section 5 : Conditions for a Hindu marriage. A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:

(i) Neither party has a spouse living at the time of the Marriage;

(ii) At the time of the marriage, neither party

(a) Is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) Though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c)has been subject to recurrent attacks of insanity

(iii) The bridegroom has completed the age of  [twenty-one years] and the bride, the age of [eighteen years] at the time of the marriage;

(iv) The parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;

(v) The parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;

 11. Void marriages: Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be a decree of nullity if it contravenes any one of the conditions specified in clauses (i) , (iv) and (v) of section 5

Petitioner Contentions:

The petitioners learned attorney has argued that the trial court did not fully evaluate the evidence on file and did not take into account all relevant circumstances. The first petitioner is an uneducated woman. She and her 4-year-old child, petitioner No. 2, were living at her brother’s home in Rajgarh as of April 2015. Additionally, he argues that because petitioner No. I is the respondent’s wife and is forced to live apart due to physical and psychological abuse, she is entitled to maintenance from him. In addition to owning a transportation vehicle, the respondent makes money from farming. Furthermore, it is argued that since petitioner No. 1 was able to obtain a divorce from her previous husband in accordance with social norms. She cannot be regarded as Respondent/Keval Singh’s illegitimate wife. There is a contention that during Durgabai’s marriage to Bhagwan Singh, her former spouse, was insignificant. She married a voidable person from the beginning.

Therefore, the second Durgabai’s marriage to Keval Singh, the respondent, cannot be regarded as an illegitimate wife. Additionally, it is argued that Durgabai does not need to file for divorce in court because he was a minor at the time of his first marriage. As a result, petitioner No. 1/Durgabai’s second marriage to respondent Keval Singh was lawful. She cannot be prevented from receiving maintenance from respondent in this way. Thus, knowledgeable counsel has requested that the contested order be set aside, that revision be graciously permitted, and that the family court’s order be changed .

 Respondent Contentions:

The Counsel for the Respondent/Husband has claimed that the Family Court disregarded all the legal and factual elements of the case and rejected the request of Petitioner No. 2 regarding maintenance. As she was already married to another person, Bhagwani, and without divorcing him, she was married to Keval Singh, so her marriage was null and void. As the maintenance awarded for the child was concerned, the Learned Trial Court only passed the order based on the petitioner contention. The Learned Trial court did not take into account any evidence available on the record. The respondent/husband’s monthly income is just Rs. 5,000/-, which he is barely supporting himself with, and he has no other sources of income.

Consequently, the Learned Counsel has also claimed that the order of the Learned Trial Court to grant maintenance to Petitioner No.2 should be annulled. In support of his arguments, learned counsel also relies on the law of the Hon’ble Apex Court as mentioned in the judgment delivered by the Court of First Instance of India in the matter of ‘Savitaben Ombhai Bhatia v. Government of Gujarat and Others’ (SC 2005 Lawsuit 466) and the order delivered by that Court in the matter of Sangeeta Raghuram v. Government of Maharashtra (Naresh Raghuram vs. Government of Maharashtra) (Lawsuit MP 2023).

Court Analysis and Judgement:

Considering such evidence of petitioner No. l/Durgabai, the learned Family Court Judge has passed this order on the ground that since the petitioner is not a legally wedded wife of the respondent, therefore, she is not entitled for the claim of maintenance. Now, coming to the verdicts filed by petitioners, the law laid down Harinarayan Khati (supra) is well considered by the learned trial Court. The learned Judge considering the law laid down by Hon’ble Apex Court in Savitaben (supra) rightly distinguished the law laid down in Harinarayan Khati. Likewise, the law laid down in Smt. Sukhraji (supra) is also distinguishable in view of the law laid down in Savitaben (supra). Learned counsel for the petitioners has also relied upon the leave granted by Hon’ble Supreme Court in the case of Badshah (supra), however, in the said judgment, the husband was already married. But he duped the wife by suppressing the factum of alleged first marriage, whereas, in the present case, the wife has not got divorced from her earlier husband.

Since in Badshah (supra) husband was already married with another woman, and by suppressing the factum of first marriage he duped the petitioner/second wife, hence, he cannot be permitted to get benefit of his own wrong. Likewise, the law laid down by Hon’ble Apex Court in Kamala (supra) is also not applicable to this case due to different factual matrix. In this case, petitioner’s wife was not married with any other person, whereas, in this case the petitioner No. I had consummated marriage with Bhagwansingh and without taking divorce from any court, she has been married with respondent. In view of aforesaid settled propositions and provisions of law it is crystal clear that the wife should be a “legally wedded wife” for claiming maintenance from her husband. A woman, having solemnized second marriage to another person, is only entitled to get maintenance from that person, when the first marriage has been declared either null and void or she has obtained a divorce decree from her first husband.

The aforesaid view has recently been endorsed by this Court in the case  of Sangeeta (supra) and Rajkumar Agrawal Vs. Sarika, 2023 Lawsuit MP 533. Since, in the case at hand, as the petitioner No. I could not get divorce from her earlier husband/Bhagwansingh and could not file any proof of setting divorce, she would not be entitled to get maintenance from her second husband/respondent. Nevertheless, the petitioner No. I of this case has the liberty to avail other remedies that may be better suited to the factual matrix of this case, as such seeking of compensation order enshrined under Section 22 of the Protection of Women from Domestic Violence Act, 2005.

So far as the enhancement in maintenance amount of petitioner No. 2/Chanchal from Rs.4,000/- to Rs.5,000/- is concerned, after going through the record, it is revealed that in the main application for maintenance filed by Petitioners before the learned Family Court, only Rs.4,000/- has been demanded for her maintenance. Looking to the income of respondent, Rs.4,000/- per month cannot be enhanced because it has been awarded from the date of filing of application. However, petitioner No. 2 is also at liberty to file an appropriate petition before learned Family Court under Section 127 of Cr.P.C. In result order of learned Family Court Dismissing the maintenance of petitioner No. I and allowing the maintenance of petitioner No. 2 is not suffering from any infirmity and illegality. Accordingly, the Criminal Revision Nos. 726/2017 & 754/2017 being devoid of merit are dismissed and the impugned order is hereby affirmed.

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Judgement Analysis Written by – K.Immey Grace

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Wife entitled to maintenance under Section 125 of Cr.PC if a man simply performs marital obligations : Bombay HC

TITLE : Alka Bhausaheb Bhad v Bhausaheb Ramrao Bhad and The state of Maharashtra

CITATION : WP No 15368 of 2023

CORAM : Hon’ble justice Rajesh S. Patil

DATE:  14th  December, 2023


A writ was filed under Article 226 of the Constitution to challenge the order and judgement given by the Additional Sessions Judge in the matter of paying maintenance under Section 125 Cr.PC.


The petitioner filed an application being Criminal Application under Section 125 of the Code of Criminal Procedure, 1973 for grant of maintenance before the J.M.F.C against the respondent.

The petitioner pleaded that she is the Second Wife of the respondent and her marriage took place in the year 1989. She was made to believe that the first wife was not cohabiting with him properly. The petitioner gave birth to a male child. The petitioner has given consent to let the first wife cohabit with him through sessions of mediation. The petitioner and the first wife after a while gave birth to a male child each. The husband shortly after that started harassing the wife and was acting violently towards her. The husband was paying maintenance till 2011 and after the instigation of the first wife, he stopped paying. The petitioner claimed 5000 per month as maintenance.

The JMFC in its ordered granted the petitioner Rs.2500 per month as maintenance after hearing  both the parties. The respondent husband appealed the decision and the Sessions judge set aside the order. The same was being challenged in the current matter.


The court held that the husband is to pay maintenance irrespective of whether or not he was married to the second wife. The fact remains that he was in cohabitation with the second wife and had two children with her. It is a well established fact that Under Section 125 of Cr.PC a man who is fulfilling his marriage duties irrespective of the act of marriage is to pay maintenance. The court upheld the decision of JMFC and stated that the petitioner can apply for a fresh application to increase the maintenance amount as it has been 9 years since the order of JMFC.

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Written by- Sanjana Ravichandran

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Wife Can’t Claim Maintenance From In Laws When She Is Capable Of Maintaining Herself: High Court Of Chhattisgarh

Title: Dhanna Sahu v Smt. Sitabai Sahu

Citation: 2023:CGHC:28158-DB

Coram: Justice Shri Goutam Bhaduri & Justice Shri Deepak Kumar Tiwari

Decided On: 08/11/2023


The present Appeal is against the judgment dated 8.2.2023 passed by the Judge, Family Court, Bemetara in Civil MJC No.5/2022 wherein the application filed by the daughter-in-law against her father-in-law claiming maintenance was allowed and an amount of Rs.1500/- was directed to be paid. The father-in-law is in Appeal before this Court.


Sitabai Sahu is the daughter-in- law of the appellant. She was married to Virendra Sahu, son of the appellant and 2 children were born. Said Virendra Sahu died in harness on 28.8.2021. Thereafter dispute arose in between the parties and the children were kept in the custody of the father-in-law i.e. the appellant. It was stated that the appellant has affluent means. He has 6 acres of land. Apart from that, he was in the avocation of doctorship, whereas the daughter-in-law was unable to maintain herself. Stating various grounds, maintenance was claimed.

The father-in-law opposed the application for maintenance and stated that his daughter-in-law has sufficient means to survive. However, no document has been placed before the Court to show that she is unable to maintain herself from the estate of her husband or father or mother. The learned family Court after evaluating the material placed before it has directed to pay an amount of Rs.1500/- as maintenance to the daughter- in-law.

Daughter-in-law has filed the application prior to this litigation for custody of the children wherein she has deposed that she has enough earning and would be able to maintain her children, apart from the property. Bare reading of the statement would show that the order itself is bad and no justification can be attached to it.

Learned counsel for the respondent opposes the said argument on submission that the statement made in the prior proceeding cannot be agitated time and again in the subsequent proceeding and position of the parties is to be evaluated in the subsequent adjudication and as such, the findings arrived at by the family Court are well merited, which do not call for any interference.

Court’s Analysis and Judgement:

In her statement, she has stated that she wants to keep the children with her, as she is doing the private job and she has sufficient income and her parental part i.e. father and mother have also sufficient means. This statement when was confronted in the cross-examination of the respondent, she admitted to have made such statement in a proceeding under Section 25 of the Act, while the proceeding was drawn before the family Court for custody of the children. She has stated that she was working in a private company and was earning enough and mother and father were also financially well.

Therefore, the statement itself made by the respondent cut across the requirement which is mandatory under Section 19 of the Act of 1956. There is no answer to the aforesaid issue as to under what circumstances, the statement was made in a judicial proceeding in earlier round of litigation and the statement having been confronted and admitted by the appellant would hold the field to adjudicate the issue. Hence the order dated 8.2.2023 was set aside by the court.

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Written by- Sushant Kumar Sharma

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A Husband Can’t Be Exempted From His Duty To Maintain His Wife Just Because He Lost His Job: High Court Of Karnataka

Citation: WP No. 20801 Of 2022

Coram: Hon’ble Mr Justice M.Nagaprasanna

Decided On: 25th Day Of October, 2023


This writ petition is filed under articles 226 and 227 of the constitution of India praying to quash the order passed by the PRL. Judge, family court at Mysuru in m.c.145/2022 dated 03.09.2022 on I.A.II vide annexure-e. The petitioner is before this Court calling in question an order dated 03.09.2022 passed in M.C.No.145/2022 on an application filed under Section 24 of the Hindu Marriage Act, 1955 (‘the Act for short) seeking interim maintenance from the hands of the husband.


The petitioner is the husband and the respondent is wife. The two get married on 02.03.2020. It transpires that the relationship between the husband and the wife flounders and on floundering of such relationship, the parties were before the Family Court in M.C.No.145/2022. The issue in the lis does not concern the proceedings before the concerned Court. The wife files an application under Section 24 of the Act seeking interim maintenance at the hands of the husband and also files an affidavit of assets and liabilities, as is required in law. The concerned Court grants an interim maintenance of Rs.10,000/- to the wife. It is this order that is called in question by the petitioner before this Court.

petitioner contends that the husband has lost his job and the Court comes to conclude that an amount of Rs.50,000/- is earned by the husband erroneously and therefore, in the light of him not having a job as on date cannot be directed to be paid a maintenance of sum of Rs.10,000/-, which has become difficult for him to even consider such payment.

Court’s Judgement and Analysis:

The submission of the learned counsel that the husband has lost his job and cannot be directed to pay maintenance is noted only to be rejected, as the husband being an able bodied man is expected to work and take care of the wife. Any interference of the order that is impugned would run foul of the judgment of the Apex Court in the case of Apex Court in the case of ANJU GARG AND ANOTHER Vs. DEEPAK KUMAR GARG. Considering that the petition of the husband was dismissed.

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Written by- Sushant Kumar Sharma

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