The Patna High Court has held that isolated allegations or incidents of immoral conduct are insufficient to establish that a woman is “living in adultery” under Section 125(4) of the Code of Criminal Procedure (CrPC). In a significant ruling, the Court set aside the Family Court’s denial of maintenance to a woman, finding that the lower court had relied on unsubstantiated claims and failed to establish continuous adulterous conduct.
The Court was hearing a criminal revision petition challenging the Family Court’s order dated 04.04.2020, which had granted maintenance of ₹4,000 per month to the minor son of the petitioner but rejected the woman’s claim for her own maintenance. The Family Court had concluded that she was not entitled to maintenance as she was allegedly living in adultery.
Background
The petition was filed under Section 125 CrPC, seeking ₹20,000 per month for the maintenance of the woman and her minor son. It was stated that the marriage took place in 2013, and the child was born in 2014. The petitioner alleged that during her pregnancy, she was harassed and later ousted from the matrimonial home due to a demand for additional dowry. It was further stated that the husband subsequently entered into a second marriage.
In response, the opposing party admitted to the marriage and paternity of the child but alleged that the petitioner had developed an illicit relationship with another man and had left the matrimonial home voluntarily. He also claimed to have pronounced triple talaq and produced a certificate of divorce issued by a religious body.
Court’s Observations
Justice Jitendra Kumar, delivering the judgment on July 7, 2025, observed that under Section 125(4) CrPC, the term “living in adultery” implies continuous conduct and not mere allegations. Citing settled legal principles, the Court held:
“‘Living in adultery’ is distinct from ‘committing adultery’. ‘Living in adultery’ denotes a continuous course of conduct and not isolated acts of immorality. One or two lapses from virtues would be acts of adultery but would be quite insufficient to show that the woman was ‘living in adultery’.”
The Court found no credible evidence on record to establish that the petitioner was living in adultery. It noted:
“There is also no cogent evidence on record to show that [she] is living with [the alleged person], nor anybody is a direct witness to adulterous life… No witness… has given any date, time and place of such adulterous relationship…”
The Court further held that the Family Court’s finding was “based on no evidence or perverse appreciation of evidence” and was thus liable to be set aside.
On Validity of Divorce
The opposing party had claimed that the woman was divorced through triple talaq. The High Court, however, held:
“Triple Talaq is illegal and invalid in view of ruling of Hon’ble Apex Court in Shayara Bano Case, wherein Triple Talaq has been held to be arbitrary and illegal. The Muslim Women (Protection Of Rights On Marriage) Act, 2019 also declares Triple Talaq void and illegal.”
“There is no claim that he has paid a single paisa to his wife during iddat period towards her maintenance, let alone making any provision for her life.”
Thus, the woman was held not to be a divorced wife in law and remained entitled to seek maintenance under Section 125 CrPC.
On Maintenance Grant
The Court held that:
“[She] is entitled to get maintenance from her husband… because [she] has no means to maintain herself, whereas [he] is an able-bodied person and doing the work of labourer.”
Regarding the timeline for payment, the Court referred to Rajnesh v. Neha and observed:
“In the interest of justice and fair play, maintenance is required to be awarded from the date of application, because the period during which the Maintenance Proceeding remains pending is not within the control of the applicant.”
Accordingly, the Court awarded maintenance of ₹2,000 per month to the woman in addition to the ₹4,000 already granted to the minor son and directed that the maintenance be paid from the date of the original application, not the order.
