The issue is important for couples involved in divorce cases, matrimonial disputes and maintenance proceedings in India.
What Does the Law Say About Maintenance and Adultery?
Under Section 125(4) CrPC, a wife may be denied maintenance if she is “living in adultery.” The provision also applies where a wife, without sufficient reason, refuses to live with her husband or where both spouses are living separately by mutual consent.
However, an allegation of adultery is not automatically proof of adultery.
The court must examine the facts, circumstances and evidence before deciding whether the statutory bar applies.
Can a Wife Be Denied Interim Maintenance for Adultery?
Mere Allegation Is Not Enough
A husband cannot automatically stop or deny maintenance simply by alleging that his wife is having an extramarital relationship.
The court may consider whether there is prima facie evidence showing that the wife is actually “living in adultery.”
Evidence may include:
• WhatsApp chats and electronic messages
• Photographs and videos
• Witness statements
• Other legally admissible electronic evidence
• Circumstantial evidence
However, the authenticity, admissibility and relevance of such evidence must be examined by the court.
What Is the Current Law Under BNSS?
India’s new criminal laws came into force on July 1, 2024.
The provision corresponding to Section 125 CrPC is now contained in Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
Therefore, while many earlier Supreme Court judgments refer to Section 125 CrPC, current maintenance proceedings should also be examined under the corresponding provisions of the BNSS.
Is Adultery a Crime in India?
Supreme Court’s Joseph Shine Judgment
Adultery is not a criminal offence in Indiafollowing the Supreme Court’s landmark judgment in Joseph Shine v. Union of India (2018).
However, adultery may still have legal consequences in divorce proceedings, matrimonial disputes and maintenance cases, depending upon the applicable law and facts.
Conclusion
A wife cannot automatically be denied interim maintenance merely because her husband makes an allegation of adultery. The court must examine whether the legal requirements relating to “living in adultery” are established on the basis of the material available.
At the same time, where credible evidence supports the statutory bar, the court may consider its impact on the wife’s maintenance claim.
The issue of adultery and maintenance in India is therefore highly fact-specific and should be decided on the basis of evidence and applicable law.
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Frequently Asked Questions
Can a wife get maintenance if she commits adultery?
The answer depends upon the facts and the applicable law. Under the maintenance law, the court may consider whether the wife is “living in adultery” and whether the statutory bar applies.
Can a husband stop maintenance after alleging adultery?
No. A husband should not unilaterally stop complying with a court’s maintenance order. Appropriate legal proceedings should be initiated before the competent court.
Can WhatsApp chats prove adultery?
WhatsApp chats may be considered as evidence if they are authentic, relevant and legally admissible. A single message or photograph does not automatically prove adultery.
What is Section 144 BNSS?
Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 contains the current statutory framework corresponding to the maintenance remedy earlier provided under Section 125 CrPC.
Is adultery a crime in India?
No. The Supreme Court decriminalised adultery in Joseph Shine v. Union of India (2018). However, adultery can still have civil and matrimonial consequences.
