Whether wife who is in adultery is entitled to get permanent alimony?

Nagpur:Quashing family court's order, the Nagpur bench of Bombay High Court ruled out alimony to a 51-year-old woman for engaging into adulterous relationship and even conceiving a child from paramour, despite not being divorced from her husband.

"It's apparent on reading of provisions for maintenance under various enactments that an unchaste wife, or a wife living in adultery, would not be entitled to a permanent alimony. In instant case, the family court found that wife was unchaste inasmuch as she had voluntary sexual intercourse with a person other than husband during subsistence of the marriage and also conceived a child through him," a division bench comprising Justice Vasanti Naik and Justice AIS Cheema held.

The judges ruled in city-based's husband favour while setting aside Nagpur Family Court's order of September 27, 2006.

The couple's marriage was solemnized on November 19, 1981, in city and they were together till May 26, 2003 before differences cropped up between them. The wife allegedly started residing with her paramour and established physical relation with him, even as first marriage was not broken.

She later conceived a child from her paramour. The 50-year-old husband then filed a case for divorce with family court, which was granted on same grounds. But he was told to pay 1,500 monthly maintenance to her. The woman challenged this verdict through an appeal but it was dismissed on April 23, 2007. The husband challenged this portion in the high court.

Citing Section 25 of the Hindu Marriage Act, Justice Naik and Justice Cheema stated that a court exercising jurisdiction under the Act, at time of passing of decree or at any time subsequent thereto, is empowered to direct husband to pay certain amount to wife for her maintenance. However, while exercising the power, the court is obliged to consider conduct of the parties and circumstances of case, the judges said.

"The family court was not justified in granting maintenance to wife, in present circumstances of the case. It is rightly submitted on husband's behalf that after having recorded a finding that wife had voluntary sexual intercourse with a person other than her husband during subsistence of marriage and had conceived a child through him, the family court was not justified in directing him to pay 1,500 to wife towards permanent alimony," the judges observed.

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