“If she commits breach… she will suffer disqualification”

In a significant judgement, the Madras High Court Bench here has held that a divorcee wanting to claim alimony from her former husband should not only refrain from remarrying but also “maintain discipline as she was expected to maintain during the subsistence of her marriage” and not have sexual relationship with any other man.

Justice S. Nagamuthu held that a divorcee would lose her right to claim maintenance if she commits any breach of the sexual obligation she had before the dissolution of her marriage. Pointing out that, legally, an adulterous wife cannot claim maintenance from her estranged husband; the judge said that the law would apply in the case of a divorcee too.

“The very object of introducing Chapter IX in the Code of Criminal Procedure for maintenance of wife, children and parents is to rescue them from destitution by extending monetary assistance. Even after divorce, the law takes care that a woman does not end up in destitution and that is the reason why she is entitled for maintenance from her erstwhile husband.

“Since a man carries an obligation to maintain his divorced wife, the woman also carries the obligation not to live in relationship with another man. If she commits breach… she will suffer disqualification from claiming maintenance… If she wants to live in relationship with another man, she may be entitled for maintenance from him and not from the former husband,” he said.

The judgement was passed while allowing a criminal revision case filed by a government employee who had challenged an order passed by Ramanathapuram Principal District and Sessions Court in 2012 directing him to pay maintenance amount of Rs.1,000 a month to his former wife whom he had divorced in 2011 on the ground of adultery.

Holding that a woman divorced on the ground of adulterous conduct would also not be entitled to alimony from her former husband, the judge pointed out that the definition of the term ‘wife’ under the Cr.P.C. includes a divorced wife and Section 125 (4) of the Code categorically states that no wife would be entitled to maintenance if she was living in adultery.

Though the revision petitioner had obtained divorce through an ex-parte decree, Mr. Justice Nagamuthu said:

“There can be no difference between a decree on contest and an ex-parte decree… It is well known that simply because the defendant (wife) had remained ex-parte, the Court shall not grant decree unless the claim made in the plaint is proved by means of evidence either oral or documentary or both.”

The judgement was passed while allowing a criminal revision case filed by a government employee