Bombay HC refuses to deny ‘adulterous’ wife maintenance | Mumbai News

MUMBAI: Observing that an estranged wife had the right to live a similar lifestyle as her husband, Bombay high court recently set aside a sessions court order that refused a woman maintenance as she had lived in adultery.
“The court should take note that it should not be a case that one spouse lives in a life of comfort and luxury while the other lives in deprivation. The order of the sessions court is unreasonable…” said Justice Prakash Naik in his June 28 order.
The couple married in January 2007. In January 2020, the wife filed a domestic violence complaint against the husband and his family. A magistrate in August 2021 directed Rs75,000 per month interim maintenance and Rs35,000 rent from the date of filing till disposal of complaint. The sessions court in December 2021 set it aside.
The wife’s advocate Ali Kashif Khan said the husband sent his friend to her and against whom she filed an FIR for rape. He said the husband’s father owns a popular restaurant and they live luxuriously.
The husband’s advocate said she was indulging in adultery with his friend, the FIR was false and he cannot be compelled to pay maintenance.
Justice Naik, considering the family income and status of parties, said Rs38,000 earned by the wife was not sufficient to maintain herself. “Hence, interim maintenance of Rs75,000 per month is necessary,” he said. As she resides separately, she has a right to alternate accommodation or rent.
Justice Naik noted that in the FIR and in her statement before a magistrate, the wife admitted she was in a live-in relationship with the accused. The session judge therefore said she loses her right to maintenance in view of section 125 (4) of Criminal Procedure Code that disentitles a woman living in adultery. Khan argued that the section conveys present continuous tense and even if the wife had lived in adultery in the past, the husband cannot refuse maintenance. Justice Naik said the question was whether the sessions judge’s interpretation would debar a woman “assuming if she was in adultery in the past”.
He said while the wife’s DV complaint was pending, the sessions judge gave “premature findings” of no domestic violence, that she was in a live-in relationship and was earning.
He considered electronic evidence of “adulterous” videos and photographs to conclude that she was not entitled to live a similar status as her husband.