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MUMBAI: A local court on Friday rejected a 38-year-old South Mumbai woman’s plea for maintenance from her estranged husband after it found she was involved in an adulterous relationship.
“The wife who engaged herself in (an) adulterous relationship with a man … cannot claim maintenance and cannot be allowed to take advantage of her own wrongdoings,” the court said while accepting the 40-year-old husband’s plea seeking divorce on grounds of cruelty and adultery.
First thing to be noted is that court has also granted divorce to husband based on wife’s adultery and cruelty. Although it is not mentioned about the section under which the maintenance application was filed/denied, it seems to be under Hindu Marriage Act, HMA Sec 24 since it is husband in this case who filed under HMA for divorce in 2005. It could possibly be under CrPC 125 too. Let’s see relevant provisions of the two acts.
Below are extracts of HMA Sec 23 A (which covers something about adultery) and Sec 24 which is about maintenance while proceedings (divorce petition in this case) are ongoing:
23A. 3[ Relief for respondent in divorce and other proceedings. In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner’ s adultery, cruelty or desertion, but also make a counter- claim for any relief under this Act on that ground; and if the petitioner’ s adultery, cruelty or desertion is proved, the court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking, such relief on that ground.]
24. Maintenance Pendente lite and expenses proceedings. Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’ s own income and the income of the respondent, it may seem to the court to be reasonable.
None of the above 2 sections have a provision where a respondent wife as in this case would have been denied maintenance.
If we look at CrPC 125 relevant section below:
(4) No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
This section would disallow maintenance on ground of adultery of wife.