No permanent alimony for adulterous wife, Punjab and Haryana HC rules

The family court had granted divorce to husband on grounds of cruelty & adultery. Later, HC upholds order saying inquiry found that woman was living "in adultery".

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New Delhi: The Punjab and Haryana High Court has refused to grant permanent alimony to a woman who was divorced by her husband on the ground of “adultery”.

The order was passed by a bench comprising Justices Ritu Bahri and Nidhi Gupta on 27 September on an appeal filed by the woman challenging the grant of divorce in 2008 by the Family Court in Ambala, Haryana.

Section 125 of the Code of Criminal Procedure provides for maintenance to a wife, children or parents. However, a sub-clause says that “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.”

The high court was hearing the appeal filed by the wife against a judgment passed in September 2008 by the Family Court, Ambala, which had allowed her husband’s petition for divorce under Sections 13(1)(i) and 13(1)(i-b) of the Hindu Marriage Act, 1955.

Section 13(1)(i) of the Act allows divorce on the ground that the husband or the wife has had voluntary sexual intercourse with somebody other than his or her spouse. Section 13(1)(i-b) allows a divorce if a husband or a wife has deserted their spouse for a continuous period of at least two years.

The couple got married in May 1989 in Ambala city. However, as per the judgment, the husband alleged that the wife’s behaviour was “extremely rude and aggressive” from the beginning of their marriage.  The judgment also took note of the husband’s allegations that “she used to abuse, insult and humiliate” him and his family members, and that his wife “developed intimacy” with their neighbour. However, the woman had denied allegations of cruelty and adultery.

The family court granted divorce to the husband, on grounds of cruelty and adultery. The high court upheld the order and refused to grant permanent alimony to the woman.

Mediation had failed

When the woman filed an appeal challenging the grant of divorce in 2009, the High Court referred the matter for mediation in May of the same year. The couple could not reach a settlement. In April 2018, the court noted that the mediation had failed in 2009. However, the appeal was not listed before the court due to an “inadvertent mistake of the employees”.

The High Court felt that the woman could not present any evidence to reverse the family court’s findings.

“Learned counsel for the appellant has not been able to lead any evidence which could reverse the finding of extra-marital affairs of appellant-wife and respondent No.2. The enquiry report (Ex.P1) coupled with the evidence given by [witnesses] consistently proved that appellant-wife was living in adultery,” the order of the two-judge bench said.

The bench then referred to various judgments that the woman had relied on to show that courts have granted alimony to the wife despite adultery allegations. However, it felt that these judgments would not be able to help her case.

For instance, the bench said in one of the cases while the husband had levelled adultery allegations against the wife, the Delhi High Court had granted alimony noting that the husband had not been able to prove the adultery allegations and that divorce was granted on the ground of cruelty and not adultery.

Pointing out the differences between such cases, the Punjab and Haryana High Court bench ruled that, “Keeping in view the observations made above, the appellant is not entitled for permanent alimony. Appeal is dismissed.”

(Edited by V. S. Chandrasekar)