MUMBAI: The Bombay high court recently dismissed pleas for maintenance by a woman whose husband had divorced her on the grounds of adultery.

Justice Nitin Sambre last week held that a sessions court was right in rejecting her plea under section 125 of code of criminal procedure. The law, which stipulates when a woman can seek monthly maintenance from her husband, says that “if the allegations of adultery are proved against such a women or in spite of the husband being ready to maintain her, she refuses to cohabit the ex/wife can be refused payment of maintenance”.

The woman had filed two petitions before the HC in 2016. She had challenged denial of maintenance to her by the lower court.

Justice Sambre observed that the “undisputed facts” in the case were that the couple had married in May 1980 and that she was divorced by him in 2000 on grounds of adultery. He had filed for divorce on the adultery ground in a Hindu Marriage petition of 1996.

She had challenged the divorce in an appeal, but the “appeal failed as the delay was not condoned”. In other words, she had filed her appeal after the time granted by law to file it had lapsed and the delay was not waived by court.

She then filed applications before the metropolitan magistrate for enhancement of maintenance from Rs150 for her and Rs25 to the son which the magistrate allowed in August 2010. The enhanced maintenance to her was Rs 500 per month and to the child it was Rs400. The magistrate rejected the husband’s plea for cancellation of the maintenance under section 125 of CrPC, which provides for husband to maintain wife and child who otherwise have no means of sustenance.

The husband then challenged the order before the sessions court, which, in July 2015, accepted his plea and set aside the maintenance order.

The wife’s counsel argued in the HC that even if she is divorced she is entitled to maintenance under the salutary provisions of section 125 CrPC. The lawyer argued that even if there is a decree of divorce passed on the allegation of adultery, she continues to be a woman and thus entitled to maintenance.

But the husband’s lawyer argued that the law clearly bars maintenance if the wife is adulterous and the adultery is proved and forms basis for the grounds on which the divorce is granted. There is a statutory embargo to granting her any maintenance and hence the sessions court is right, it was argued.

Justice Sambre agreed with the husband’s legal submission and held that she “is not entitled for maintenance” because the “fact remains that, there is an expressed embargo on the right of a woman to claim maintenance, pursuant to the provisions under subsection (4) of section 125 of the Act”.

The high court distinguished between the rights of a woman who was “divorced not on the ground of proved adultery” to continue getting maintenance after divorce.

“Considering the express embargo on the right of the woman, to claim maintenance particularly, when divorce was ordered on 27.4.2000 based on the allegation of adultery, the court below has rightly held that the petitioner-wife is not entitled for maintenance,” the HC said .