‘Committing Adultery Once Or Twice Not Same As Living In Adultery': HC Grants Maintenance To Woman
'A mere lapse, one or two, can't be said to be living in adultery. If it is followed up by a further adulterous life, the woman can be said to be 'living in adultery'," the HC said
Drawing a sharp distinction between 'committing adultery" and 'living in adultery", the Patna High Court (HC) observed that 'a mere lapse, whether it is one or two, and a return back to a normal life cannot be said to be living in adultery".
The Patna High Court on July 7 granted maintenance to a woman previously denied support by a family court on the grounds of alleged adultery.
The bench of Justice Jitendra Kumar drew a crucial distinction between 'committing adultery" and 'living in adultery". The HC underscored that a wife is disqualified from receiving maintenance under Section 125 of the CrPC only if she is proven to be 'living in adultery", a continuous course of conduct, not a one-time lapse.
'A mere lapse, whether it is one or two, and a return back to a normal life cannot be said to be living in adultery. If the lapse is continued and followed up by a further adulterous life, the woman can be said to be 'living in adultery'," the HC observed.
Bulbul Khatoon and her minor son Danish Raza, filed a maintenance petition in 2017 against Md. Shamshad, her husband and father of the child. While the family court had directed Shamshad to pay Rs. 4,000 per month to his son, it rejected Bulbul's claim, citing alleged adultery and a divorce reportedly executed through a local religious institution, namely Darul Kaja Edara Sharia, Koshi Commissionery, Purnia.
The high court, however, found that the talaqnama produced by Shamshad lacked Bulbul's signature and did not satisfy the conditions laid down by the Supreme Court in Shayara Bano v. Union of India, which held triple talaq to be void and unconstitutional.
'Hence, Bulbul Khatoon cannot be held to be a divorced wife. There is also no pleading or evidence on record to prove that Bulbul Khatoon has been divorced by Md. Shamshad by any other legal mode," court held.
Justice Kumar further noted that allegations of Bulbul's illicit relationship with one Md. Tarikat had not been proved by her husband. None of the seven defense witnesses, including Shamshad, could provide conclusive proof of adultery.
On the other hand, Bulbul had placed on record sufficient evidence that she had been living at her parental home along with her minor son.
The high court also found that Bulbul had been forced out of her matrimonial home after failing to meet dowry demands, and had since been living at her parental home without means to support herself. A pending criminal complaint under Section 498A IPC further supported her version of events.
Considering these findings, court ordered Md. Shamshad to pay Bulbul Khatoon Rs. 2,000 per month from October 30, 2017, the date on which the original maintenance application was filed. It also revised the maintenance for the minor son Danish Raza, making it effective from the same date rather than the family court's order date of April 4, 2020.
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