The Kerala High Court has set aside a Family Court order granting maintenance to a wife, holding that she is disentitled to claim maintenance under Section 125(4) of the Code of Criminal Procedure (Cr.P.C.) as she was found to be “living in adultery.”
The Bench, led by Justice Kauser Edappagath, clarified that in maintenance proceedings, the standard of proof required to establish adultery is the “preponderance of probabilities” and not proof “beyond a reasonable doubt,” as applicable in criminal trials.
Background of the Case
The revision petition was filed by the husband challenging the order dated December 29, 2022, in M.C. No. 135 of 2020 passed by the Family Court, Muvattupuzha. The couple’s marriage was solemnized on September 12, 2003. Following marital disputes, the husband filed an original petition for divorce, which was subsequently allowed.
The respondent-wife filed a maintenance case invoking Section 125 of the Cr.P.C., claiming a monthly allowance of Rs. 25,000. The husband resisted the claim, relying on sub-section (4) of Section 125 Cr.P.C., alleging that the wife was living in adultery with one Sri. Ajith V. Nair. The Family Court, however, did not accept the contention of adultery and directed the husband to pay maintenance at the rate of Rs. 7,500 per month.
Arguments Before the Court
Sri. A. Rajasimhan, learned counsel for the petitioner-husband, argued that the impugned order was illegal and overlooked sufficient evidence proving the respondent was living in adultery. He contended that the Family Court erred in finding that the relationship between the respondent and the alleged adulterer was not an adulterous one.
Sri. T.K. Rajeshkumar, learned counsel for the respondent-wife, argued that a wife is disentitled to maintenance only if she is “living in adultery” continuously. He submitted that a single or isolated instance of an adulterous act is insufficient to invoke Section 125(4). The counsel placed reliance on several decisions, including T. Mercy and Others v. V.M. Varughese and Sandha v. Narayanan, to argue that there was no evidence of continuous adulterous living.
Court’s Analysis and Observations
1. The Standard of Proof in Maintenance Cases The Court observed that while Section 125 Cr.P.C. (Section 144 of BNSS) provides a civil right to maintenance, this right is not absolute. Addressing the standard of proof required when a husband alleges adultery as a defence, the Court held:
“The right claimed by the wife under Section 125 of Cr.P.C. is a civil right… When the husband alleges that the wife is living in adultery and thereby disqualified from claiming maintenance, he is not required to prove the adulterous act beyond a reasonable doubt, as in criminal prosecution under the now-repealed Section 497 of IPC. Instead, proof by preponderance of probabilities is sufficient.”
The Court noted that since adultery typically occurs in secrecy, direct proof is rare, and it can often be established through circumstantial evidence.
2. Evaluation of Evidence The High Court scrutinized the evidence presented by the petitioner, which included medical records, oral testimonies, and call details.
- Medical Evidence: The Court relied on the testimony of a Psychologist (RW2) and treatment records (Ext.X2) from Caritas Hospital. The records revealed that the respondent had admitted to an “extramarital affair for the last one year” with Sri. Ajith. The Psychologist recorded that the respondent stated “the relationship with Ajith was much more than that with her husband and her family members.”
- Eyewitness Testimony: The Court noted the deposition of RW3, who witnessed the respondent and Sri. Ajith in a “compromising position” in a parked car.
- Technical Evidence: The investigating officer (RW4) in a related Section 498A case testified that call details (Ext.X5) placed both the respondent and Sri. Ajith under the same tower location at the time they were spotted in the car.
- Corroborating Documents: The Court also referred to Ext.B3, a divorce petition filed by the wife of the alleged adulterer, Sri. Ajith, in which she alleged that he was leading an adulterous life with the respondent.
3. Finding on “Living in Adultery” The Court rejected the respondent’s argument that the evidence pointed only to an affair prior to the maintenance petition or isolated instances. The Court stated:
“Whether a women is living in adultery or not cannot be determined on a numerical basis. The matter is to be looked into holistically… It has come out in evidence that the respondent had admitted to RW2… that she had an extramarital relationship running for a period of one year with Sri. Ajith.”
Decision
The High Court concluded that the circumstantial evidence was sufficient to establish the factum of “living in adultery” on a balance of preponderance and probabilities.
“The finding of the Family Court that the evidence on record is insufficient to prove that the respondent is living in adultery is against the settled principles of appreciation of evidence.”
Consequently, the Court held that the respondent is not entitled to maintenance. The revision petition was allowed, and the impugned order of the Family Court was set aside.
