‘One Or Two Lapses Not Same As Living In Adultery’: Patna HC Upholds Maintenance To Wife, Daughter

Last Updated:May 14, 2025, 02:46 IST

The court rejected a plea by the husband that his wife was living in adultery with her brother-in-law, so she was not entitled to maintenance under Section 125 of CrPC

The court also pointed out that the petitioner has never filed any matrimonial petition before a family court or any civil court regarding a declaration in regard to the paternity of the child. Representational image/Getty

The Patna High Court has said that adulterous life is no doubt a disqualification for any wife to get maintenance from her husband under Section 125 CrPC; however, any physical relationship of a lady with any person prior to her marriage does not come within the definition of “adultery” because adultery is an offence against one’s spouse.

A single-judge bench of Jitendra Kumar said the adulterous life of any wife subsequent to her marriage is undoubtedly a disqualification for any married wife to get maintenance from her husband.

“However, ‘living in adultery’ denotes a continuous course of conduct and not isolated acts of immorality. One or two lapses from virtues may be acts of adultery, but would not be sufficient to show that the woman was ‘living in adultery’. A few moral lapses and a return to a normal life can not 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 bench said.

The court rejected a plea by the husband that his wife was living in adultery with her brother-in-law, so she was not entitled to maintenance under Section 125 of CrPC.

Even the plea of the petitioner that the woman is now divorced and she is not entitled to get maintenance under Section 125 CrPC was rejected.

“As per Explanation (b) to Section 125(1) CrPC, wife includes even divorced wife and she is entitled to get maintenance under Section 125 CrPC if she has not remarried and it is not a case of the petitioner that his divorced wife has remarried,” the bench said.

The bench upheld the order by the Family Court, Bhagalpur, which directed the petitioner to pay Rs 3,000 per month to his wife and Rs 2,000 per month to his daughter towards their maintenance.

It noted that, except for the allegation that his wife was having an illicit relationship with her brother-in-law prior to and subsequent to the marriage, there were no specific details regarding such a life of his wife. Even the conduct of the petitioner/husband during the subsistence of the marriage does not show that he was serious about his allegation, the court said.

The bench pointed out, “No such allegation has been made in his divorce petition, which was filed not on the ground of adultery but on the ground of cruelty and desertion. Moreover, as per his pleadings, he was always ready to keep his wife with him. Such willingness on the part of a husband is not possible if he believes that his wife has been indulging in an adulterous life. Hence, the petitioner has not proved that his wife was living in adultery.”

As per the claim of the wife, her husband-petitioner herein was having an illicit relationship with another lady, and hence, he was subjecting her to ill-treatment/cruelty, and she was constrained to leave her matrimonial home to live at her parental home along with the child.

Even in the divorce proceeding, the petitioner-husband could not prove his allegation of desertion by his wife. Moreover, one criminal case filed by the wife for alleged cruelty is still pending for consideration in the Court of SDJM, Bhagalpur, the bench said.

The petitioner-husband also claimed that he is not the biological father of the minor daughter, as she was born on August 08, 2010, whereas his marriage was solemnised on March 18, 2010, which shows that the girl child was born just after 4 months and 10 days of his marriage.

He claimed the child is not his legitimate daughter and that she, being born out of an illicit relationship of the wife with someone else, is the illegitimate child of another man, and hence, he is not liable to pay any maintenance to her.

On this, the bench, however, said it would be pertinent to point out that as per Section 112 of the Evidence Act, a child born during the continuation of a valid marriage between his/her mother and any man is held to be the legitimate son/daughter of that man, unless it is shown by that man that he had no access to his wife at any time when the child could have been conceived.

Relying upon the Supreme Court judgment in the case of Aparna Ajinkya Firodia Vs Ajinkya Arun Firodia, the court pointed out it was held that birth during the continuance of marriage is “conclusive proof” of legitimacy unless “non-access” of the party who questions the paternity of the child at the time the child could have been begotten is proved by the said party.

The court said the girl child was born here during the subsistence of marriage, though it is also not disputed that she was born just after 4 months and 10 days of the marriage.

Hence, in view of the law, as provided in Section 112 of the Evidence Act, 1872, she was presumed to be the legitimate daughter of the petitioner because it had already been found that the marriage between her mother and the petitioner was valid and subsisting. The presumption regarding the paternity could have been rebutted only by the petitioner pleading and proving his non-access to the mother at the time when the child could have been conceived, the bench said.

“But I find that there is no such pleadings and evidence on behalf of the petitioner that before marriage, he had no access to or relationship with the wife, except the bald allegation on his part that his wife was having illicit relationship with her brother-in-law prior and subsequent to the marriage,” the judge said.

The court also pointed out that the petitioner has never filed any matrimonial petition before a family court or any civil court regarding a declaration in regard to the paternity of the child.

The bench also rejected the petitioner’s plea that the woman was not his legally wedded wife on the ground that his marriage with her was forcibly solemnised.

“However, I find that, as per the evidence, that the marriage was solemnised as per Hindu Rites and Customs at Temple without any application of force. Moreover, I find that the petitioner has never filed any matrimonial petition for annulment of his marriage, either under Section 11 or 12 of the Hindu Marriage Act. I further find that he has filed only a divorce petition under Section 13 of the Hindu Marriage Act and it goes without saying that divorce petition is filed by the husband only against his legally wedded wife. Hence, the plea of the petitioner that the woman was not his legally wedded wife, has no substance,” the judge said.

The court also emphasised that a strict standard of proof is not required in a proceeding under Section 125 of CrPC, unlike in matrimonial proceedings, where strict proof of marriage or paternity is essential.

It said, prima facie, the court’s satisfaction regarding the parties’ marital status and the child’s paternity is sufficient to pass an order under Section 125 of CrPC.

It has also been discussed and found that any finding regarding the marital status of the party or paternity of the child in a proceeding under Section 125 CrPC is tentative and not final, and it is always subject to the order of any civil court or family court, which are the competent courts to conclusively decide the marital status of the party or legitimacy or illegitimacy of the child, the bench said.

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