Is wife entitled to maintenance where adultery was a ground of divorce?
Under Hindu Marriage Act, 1956 adultery is a ground of divorce. Here even one single act of adultery is enough but the word in s. 125 (4) CrPC are ‘living in adultery’ and which means continuous act of adultery. Therefore, even if a husband has obtained divorce on the ground of adultery, he will be liable to pay maintenance to the wife unless he proves in the proceedings u/s 125 that the wife was living in adultery. (refer Naluini Kumar Pal 1977 Cr LJ NOC 148 (Cal) )
However, the maintenance can be denied to the wife only for the period during which she was living in adultery. The expression if she was living in adultery as used in s. 125 (4). The Court said about this that it convey the present continuous tense. The wife who ceased to live in adultery could not be deprived of maintenance in the present because she was doing so in the past. (refer Md. Abdul Sattar v. State of Assam, AIR 2009 NOC 212 (Gau).
Read: Women Related Law
The Bombay High Court has held that where an order for maintenance is cancelled on account of the wife was living in adultery, such cancellation extinguishes not only her future right of maintenance but also the arrears of her pasty maintenance. (refer Sangavva Gulappa v. Gupappa Kariyeppa, (1942) 44 BOm LR 614) the Calcutta High Court is of the opinion that an order of cancellation of maintenance takes effect from the date of the order and has no retrospective operation. It cannot affect the arrears due up to the date of the order.
An order passed by Magistrate compelling wife to submit herself to medical examination in order to find out whether she has committed any act of adultery without obtaining consent, contravenes her fundamental right under Art 21 of the constitution of India and is liable to be set aside.