Is a husband still liable to pay maintenance if his wife is living with another man?

No, under Section 144(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), a wife who is living in adultery or is in a relationship with another man is not entitled to maintenance. A husband must provide evidence of the adulterous relationship to seek relief from paying maintenance. If a husband discovers that his wife is living with another man, he may seek to challenge her entitlement to maintenance based on the legal provisions and principles established under Indian law. The key issue in such cases is whether the wife’s conduct violates her right to claim maintenance. Below is a comprehensive discussion of the subject, highlighting the relevant legal provisions, key considerations, and case laws.

Relevant Legal Provisions

  1. Section 144(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS):
    • Under Section 144(4), a wife is not entitled to maintenance if she:
      • Is living in adultery,
      • Refuses to live with her husband without sufficient reason,
      • Is living separately by mutual consent.
  2. Section 144(5) of the BNSS:
    • This section allows a husband to seek cancellation of a maintenance order if he can prove that his wife is living in adultery or has sufficient means to maintain herself.
  3. Personal Laws:
    • Many personal laws, including Hindu, Muslim, Christian, and Parsi matrimonial laws, also consider adultery and relationships outside marriage as grounds for denying a wife maintenance.

Legal Implications for the Husband

If a husband proves that his wife is living with another man, it can impact her right to claim maintenance in the following ways:

Grounds for Denying Maintenance

  1. Living in Adultery:
    If the wife is living in a relationship akin to marriage with another man, it constitutes “living in adultery,” which disqualifies her from receiving maintenance under Section 144(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
  2. Voluntary Desertion:
    If the wife has abandoned the husband to live with another man, the courts consider it voluntary desertion without sufficient cause, making her ineligible for maintenance.

Grounds for Stopping Maintenance

If maintenance has already been awarded, the husband can apply under Section 146 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) to modify or cancel the order on the ground that the wife is living in adultery.

Key Considerations

  1. Burden of Proof:
    • The husband must provide strong evidence to prove that the wife is living with another man. Courts generally require concrete proof and not just allegations.
  2. Types of Evidence:
    Evidence that may support the husband’s claim includes:
    • Eyewitness accounts or testimony,
    • Photographic or video proof of cohabitation,
    • Rental or property records indicating the wife shares a home with another man,
    • Evidence of a relationship being publicly acknowledged, such as social media posts.
  3. Nature of Adultery:
    Courts often differentiate between casual relationships and cohabitation that mimics marriage. A wife in a long-term, live-in relationship is more likely to lose her maintenance entitlement than one in a fleeting association.

Important Case Laws

1. Roxann Sharma v. Arun Sharma (2015):

  • The Supreme Court noted that a woman cohabiting with another man could be treated as living in adultery, disqualifying her from receiving maintenance.

2. Shyamlal v. Kavita (1993):

  • The court emphasized that cohabitation with another man undermines the wife’s right to claim maintenance under Section 144.

3. Gurumukh Singh v. Bhupinder Kaur (1981):

  • The court held that proof of living in adultery disqualifies a wife from claiming maintenance as it violates the sanctity of the marital bond.

4. Suresh v. Leelabai (2007):

  • This case stressed the importance of evidence in proving cohabitation or adultery. Allegations without substantiation are insufficient.

5. Kalpana Jain v. Prakashchand Jain (1993):

  • The court clarified that isolated instances of adultery might not disqualify a wife, but ongoing cohabitation or a live-in relationship does.

Procedure to Deny or Stop Maintenance

If the husband suspects that the wife is living with another man, he should follow these steps:

Step 1: Gather Evidence

  • Collect evidence proving cohabitation or a live-in relationship. This may include photographs, legal records, or witness statements.

Step 2: File an Application in Court

  • File a petition under Section 144(4) of the BNSS to deny maintenance if it is not yet awarded.
  • If maintenance is already granted, file for its cancellation under Section 146 (1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

Step 3: Present Evidence

  • During court proceedings, submit all evidence proving that the wife is living in adultery or has deserted the marital relationship to cohabit with another man.

Step 4: Contest the Appeal

  • If the wife appeals the decision, present robust arguments and additional evidence, if necessary, to support your claims.

Challenges Faced by Husbands

  1. Proving Adultery:
    • Courts demand clear and convincing evidence. Allegations alone will not suffice.
  2. Counter-Claims by Wife:
    • The wife may argue that she was forced to leave due to domestic violence, harassment, or neglect.
  3. Delayed Proceedings:
    • Proving adultery or cohabitation may take time, during which interim maintenance orders may still apply.

What Happens if Adultery Is Proved?

If the husband successfully proves that the wife is living with another man:

  1. Denial of Maintenance:
    • The court will deny or cancel the wife’s right to maintenance under Section 144(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
  2. Refund of Past Maintenance (Rare Cases):
    • In exceptional circumstances, the court may direct the wife to repay amounts received fraudulently.
  3. Adverse Remarks on Conduct:
    • The wife’s conduct may be criticized in the court order, impacting her credibility in future cases.

FAQs

Q1: Can the wife still claim maintenance for her child if she is living with another man?

Yes, children’s maintenance is independent of the wife’s conduct. Even if the wife is living with another man, the husband is obligated to provide for the child.

Q2: Can the wife argue that cohabitation was due to the husband’s neglect?

Yes, the wife may claim that she sought support from another man due to abandonment, violence, or lack of care from the husband. The court will assess these claims before denying maintenance.

Q3: Does a live-in relationship immediately disqualify the wife?

If the relationship mimics a marriage or involves cohabitation, it can disqualify her. However, casual interactions or friendships may not lead to the same outcome.

Conclusion

Under Section 144(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), a wife living with another man is generally not entitled to maintenance. However, the burden of proof lies on the husband, who must provide strong evidence of adultery or cohabitation. Courts carefully examine the circumstances and require clear evidence to make a fair judgment. Therefore, husbands facing this situation should act promptly, engage legal counsel, and follow the appropriate legal procedures to protect their rights.

Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.

Adcocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)

Contact: 88271 22304

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