Safiya Malik

The High Court of Kerala Single Bench of Justice Dr. Kauser Edappagath, in a revision arising from maintenance proceedings under Section 125 of the Code of Criminal Procedure, set aside the Family Court’s order directing payment of monthly maintenance to the wife. The Court held that circumstantial evidence, assessed on a preponderance of probabilities, can be sufficient to establish that a spouse is “living in adultery” and thereby defeat a claim for maintenance under Section 125(4) Cr.P.C. In this case, the husband, as revision petitioner, successfully established such conduct on the part of the wife, disentitling her to maintenance.

The petitioner and respondent married in 2003. After a few years, marital disputes arose and the husband approached the Family Court seeking divorce, which was subsequently granted. Thereafter, the wife instituted proceedings before the Family Court under Section 125 of the Code of Criminal Procedure seeking monthly maintenance, initially claiming a higher amount. The husband opposed the claim contending that the wife was “living in adultery” and therefore was not entitled to maintenance under sub-section (4) of Section 125. The Family Court rejected this defence and ordered a lesser amount of monthly maintenance in favour of the wife.

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In revision before the High Court, the husband reiterated that sufficient evidence had been adduced to establish that the wife was living in adultery. He relied on his own testimony, the evidence of three other witnesses and documentary records. A psychologist from a hospital at Thellakom and the treatment records showed that the wife had disclosed an extramarital affair and a relationship she valued more than her marriage. Another witness stated that he found the wife and a man together in a car in a compromising situation. The investigating officer in a criminal case under Section 498A IPC produced call detail records said to corroborate this version.

The Court recorded that Section 125(4) states that “no wife shall be entitled to receive an allowance for maintenance from her husband if she is living in adultery.” It stated that the consistent judicial position is that “a single instance of adulterous conduct is not enough … there must be evidence of continuous adulterous behaviour.” It stated that the issue was the level of proof required, noting that maintenance proceedings are civil in nature and “proof by preponderance of probabilities is sufficient.” It observed that adultery “typically occurs in secrecy, making direct proof rare,” and can be established through circumstantial evidence “provided the circumstances lead logically to that conclusion.”

In examining evidence, the Court recorded that the petitioner had taken a definite plea of adultery and produced oral and documentary evidence. RW2’s deposition and Ext.X2 treatment records revealed that “the respondent had an extramarital affair for the last one year” and that the respondent admitted to RW2 that “she had an extramarital affair running for a period of one year” and that “the relationship with ______ was much more than that with her husband.” The Court stated that the testimony remained unshaken in cross-examination.

Addressing the respondent’s argument that even if true, it showed only an isolated event before 11.11.2019, the Court stated: “Whether a woman is living in adultery or not cannot be determined on a numerical basis. The matter is to be looked into holistically.” It added that patients may not “open up fully and admit the adulterous act blindly,” while the material recorded sufficiently disclosed extramarital involvement.

Regarding RW3, the Court recorded his testimony that he saw the respondent and the alleged partner “sitting in a semi-naked compromising position in the car.” The Court observed that the Family Court’s view that this did not prove sexual intercourse was incorrect when considered with the corroborative evidence.

RW4, the investigating officer in Crime No.81/2020, deposed that tower location data in Ext.X5 showed both persons “under the tower location where the car was parked,” which “corroborates the oral testimony of RW3.” The Court also recorded that Ext.B3, the divorce petition filed by the alleged adulterer’s wife, contained allegations that he was living an adulterous life with the respondent.

The Court stated that these circumstances collectively constituted “sufficient to establish the factum of ‘living in adultery’ on a balance of preponderance and probabilities,” rendering the Family Court’s finding contrary to the evidence.

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The Court concluded that “the aforementioned circumstantial evidence are sufficient to establish the factum of ‘living in adultery’ on a balance of preponderance and probabilities to defeat the claim of the respondent under Section 125 of Cr.P.C. The finding of the Family Court that the evidence on record is insufficient to prove that the respondent is living in adultery is against the settled principles of appreciation of evidence.”

The respondent is not entitled to maintenance from the petitioner as she is found to be living in adultery. The impugned order, thus, cannot be sustained, and accordingly, it is set aside.” The revision petition is allowed.”

Advocates Representing the Parties

For the Petitioner: Sri. A. Rajasimhan, Kum. Vyakhari K.U., Shri. Sharafudheen M.K., Shri. Anas Ali M.M.

For the Respondent: Shri. T.K. Rajeshkumar, Shri. Manoj V George, Smt. T.N. Bindu, Shri. Abhishek, Shri. Dhananjay Deepak, Shri. Jijo Jose

Case Title: X v Y
Neutral Citation: 2025: KER:88717
Case Number: RPFC No.100/2023
Bench: Justice Dr. Kauser Edappagath