Can I claim alimony in India if my husband has committed adultery? I am filing a case against him fo
17-Jul-2024 (In Criminal Law)
You cannot criminally prosecute either spouse for 'adultery-(Supreme Court decriminalised Section 497 IPC in Joseph Shine v. Union of India). See Joseph Shine v. Union of India: https://indiankanoon.org/doc/42184625/. You do have civil/matrimonial remedies: file for divorce (adultery/cruelty grounds) and claim interim or permanent alimony under the Hindu Marriage Act, Sections 24 and 25 (texts and explanation). See HMA, Ss.24'25: https://indiankanoon.org/doc/192430907/. You may also claim maintenance from the husband under the BNSS (formerly CrPC Section 125) -BNSS Section 144 preserves the maintenance remedy; courts can order interim relief quickly. See BNSS S.144: https://thebharatiyanagariksurakshasanhita.in/chapter-10-order-for-maintenance-of-wives-children-and-parents/. If the husband is secretly earning or conceals income the courts routinely impute income, draw adverse inferences and award/alter alimony accordingly (see Shamima Farooqui v. Shahid Khan (maintenance principles) and Rajnesh v. Neha (guidelines on maintenance and awarding from date of application)); see Shamima Farooqui: https://indiankanoon.org/doc/189967724/ and Rajnesh v. Neha: https://sooperkanoon.com/case/1227614/rajnesh-vs-neha. Finally, a third party may face criminal liability under the Bharatiya Nyaya Sanhita (for example Section 84 BNS criminalises enticing/taking away a married woman with intent for illicit intercourse) if the facts show enticement/abduction; see BNS S.84: https://indiankanoon.org/doc/149679501/. In short: pursue family'court remedies (Section 24/25 HMA and BNSS S.144) and gather financial evidence (bank records, communications, proof of joint activity) so courts can impute income; criminal adultery charges are not available but BNS S.84 may apply to wrongful enticement.
In India, adultery by a spouse does not automatically bar them from receiving alimony or maintenance. The courts take into account various factors such as financial dependency, earning capacity, the duration of the marriage, and the overall circumstances surrounding the separation. While adultery is a valid ground for divorce, maintenance may still be granted unless it is clearly proven that the spouse is "living in adultery,"which implies a continuous and ongoing extramarital relationship. As per Section 125(4) of the Criminal Procedure Code, a wife who is living in adultery is not entitled to maintenance. However, a single instance of adultery, especially if not ongoing or proven in court, may not disqualify her from receiving financial support. The final decision lies with the discretion of the court, which aims to ensure justice and prevent financial hardship to the dependent spouse.
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