In Hindu law, the term “Maintenance” has been defined under the Hindu Adoptions and Maintenance Act, 1956, as ‘provision for food, clothing, residence, education, and medical attendance and treatment.’ Maintenance denotes sustenance; support; assistance; aid for financial resources. The maintenance of the aged parents, infant children, and wife are considered to be a moral duty of a person. But the right will differ a lot when the ground for matrimonial dispute is adultery. One must be aware of the concept of adultery and maintenance to wife in India to avoid the legal remedies abuse. Under Modern Hindu law, a person has a personal obligation to maintain:
(a) His wife;
(b) His Children; and
(c) His aged parents.
Maintenance as a Right of Wife
The obligation of the husband to maintain his wife begins with the marriage. Under the Hindu law, a wife has exclusive right to claim for the maintenance from her husband under Section 125 of the Code of Civil Procedure, 1973, Section 24 and Section 25 of the Hindu Marriage Act, 1955 and in case of domestic violence, under Section 23 of the Protection of Women from Domestic Violence Act, 1955 . In assessing the quantum of maintenance, the court has to take into account various factors like position and liabilities of the husband along with his financial capacity.
Even an earning wife is entitled to maintenance as per the Supreme Court Judgments in cases e.g., Bhagwan Dutt v. Kamla Devi. Besides that, if the confusion arises out whether any strict proof of marriage is necessary or not for maintenance under Section 125 of CrPC, then the latest Supreme Court judgment on maintenance to wife i.e., Kamala and Others v. M.R. Mohan Kumar signifies that it is not necessary.
Grounds on which the Order of Maintenance can be refused
- The wife is adulterous; or
- The wife refuses to cohabit with the husband without any sufficient cause; or
- The husband and wife are living separately by mutual consent.
Adultery refers to the voluntary sexual intercourse of a married person with a person other than their spouse. Adultery is a matrimonial offence, and living in adultery is also a ground of divorce. Under the Indian Law, adultery was also a criminal offence under Section 497 of the Indian Penal Code, 1860, however, the same has now been decriminalised. Under the matrimonial law, adultery is an offence against marriage and, therefore, it is essential that at the time of the offence a valid marriage was subsisting to constitute the offence of adultery it is also necessary that the respondent was a consenting party. In short, sexual intercourse must be consensual.
Proof of Adultery and Burden of Proof:
The burden of proof to prove adultery is on the petitioner. At the time of evidence, a petitioner is not required to prove adultery of his/her spouse beyond all the reasonable doubts, but it can be proved by ‘preponderance of probability’. In evidence “beyond reasonable doubt” means fully satisfied, entirely convinced, satisfied to a moral certainty; and phrase is the equivalent of the words clear, precise and indubitable and the party must establish their claim “beyond a reasonable doubt,” which means that facts proven must, by virtue of their probative force, establish guilt. However, “preponderance of probabilities” is a standard of proof (used in civil suits) which is met when a party’s evidence on a fact indicates that it is “more likely than not” that the fact is as the party alleges it to be. There is always a presumption of innocence and it is for the petitioner to prove the allegations that have been relied upon by him/her. The respondent, on the other hand, bears the burden of establishing the affirmative defences set up in reply.
Section 23 of the Hindu Marriage Act, 1955, states that the court should decree the relief if it is satisfied that the ground for granting the relief exists. It is often argued that because adultery is a serious matrimonial offence, therefore, it must be established beyond all reasonable doubts. However, Section 23 of the HMA, 1955, itself puts adultery on the same footing as other matrimonial offences mentioned under Section 13 of the Act such as cruelty, desertion, etc.
Is there Any Provision of Maintenance for Wife Living in Adultery?
An adulterous wife cannot claim maintenance. Yes, a wife who is charged under the allegation of being indulged in an adulterous life is not eligible for maintenance as per Section 125 of the Code of Civil Procedure, 1973, and Section 18 of the Hindu Adoption and Maintenance Act. The word ‘unchaste’ refers to relating to or engaging in sexual intercourse activity or especially of an illicit or extramarital affair. A wife indulged in unchaste activity is denied for the claim of maintenance.
However, under Section 24 of the Hindu Marriage Act, 1955, a woman can claim interim maintenance till the disposal of a divorce proceeding if the wife has no independent income sufficient for her support and the necessary expenses of the proceedings, and the Court on the application of the wife, order the husband, to pay to the petitioner the expenses of the proceeding, and monthly maintenance during the proceeding(s) after considering the husband’s income and the income of the wife.
In Under Vinod Kumar versus Kaushalya, I (1996) DMC 603 Raj, it was held that if a suit for divorce is decreed after the trial on the ground of adultery then the wife will not be entitled to get permanent alimony and maintenance under Hindu Marriage Act, 1955, because adultery alleged against the wife has been proved.
Therefore, in light of the above-mentioned law, a husband cannot be made liable to pay alimony or maintenance to his wife, if the wife’s adultery is proved in the court of law.