The Patna High Court recently ruled that 'living in adultery' under Section 125 of the Code of Criminal Procedure (CrPC) implies a continuous course of conduct and not isolated acts of "immorality"..Section 125(4) states that a wife shall not entitled to receive maintenance from her husband if she is living in adultery. Justice Jitendra Kumar held that "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 lapse and a return back 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 Court said..The Court added that any physical relationship of a woman with any person prior to her marriage does not come within the definition of “adultery”."However, adulterous life of any wife subsequent to her marriage is undoubtedly a disqualification for any married wife to get maintenance from her husband," it added..The Court made the observations while dealing with a husband's plea challenging a family court order directing him to pay ₹3,000 per month to his divorced wife and ₹2,000 per month to their minor daughter.The petitioner husband argued that his wife was not entitled to maintenance as she was in an illicit relationship with her brother-in-law. He also claimed that the child was not his biological daughter..However, the Court said that he failed to provide any substantial evidence to support his claims.“In the case on hand, I find that the petitioner-husband has not made any specific pleadings regarding adulterous life of his wife xxx. He was required to give details of the adulterous life of his wife with reference to time and place beside giving the name of the adulterer. But I find that in his pleadings and evidence, except bald allegation that his wife was having illicit relationship with her brother-in-law, viz., xxx prior and subsequent to the marriage, there is no specific details regarding such life of his wife.".On the issue of paternity, the Court referred to Section 112 of the Evidence Act, which presumes that a child born during the subsistence of a valid marriage is the legitimate child of the husband. This presumption stands unless the husband can prove that he had no access to his wife during the time the child could have been conceived, it added.In the present case, the Court found that the child was born during continuation of a valid marriage and thus there exists a mandatory legal presumption that she is legitimate daughter of the petitioner..It also found that the maintenance amount awarded by the family court was reasonable..Advocates Ranjan Kumar Jha, Mirtunjay Kumar Mishra, Rana Pratap Singh and Nitu Kumari appeared for the petitioner.Advocate Upendra Kumar appeared for the State.Senior Advocate Sanjeev Kumar Mishra along with Advocates Manini Jaiswal, Binay Krishna and Manas Rajdeep appeared for the wife and child.
