The High Court held that a wife’s love and affection for someone other than her husband does not amount to adultery unless she is in a physical relation with such person.

Adultery necessarily has to involve sexual intercourse, the court held.

Hence, the judge rejected a husband’s argument that since his wife was in love with somebody else, she was not entitled to maintenance.

The Court said that Section 144(5) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) or Section 125(4) of the Code of Criminal Procedure (CrPC) makes it clear that only if the wife is proved to be living in adultery, then the maintenance amount can be denied.

“Adultery necessary means sexual intercourse. Even if a wife is having a love and affection towards somebody else without any physical relations, then that by itself cannot be sufficient to hold that the wife is living in adultery,” the Court said in the judgment.

The Court was hearing a revision petition moved by the husband against a family court’s order directing him to pay an interim maintenance of ₹4,000 to his wife. He said he works as a Ward Boy and earns only ₹8,000.

The Court was also told that she was already getting ₹4,000 after an order was passed under Section 24 of the Hindu Marriage Act and, therefore, the interim maintenance of ₹4,000 awarded under Section 125 of the CrPC was on a higher side.

However, the Court said the salary certificate issued by the hospital where the man is working was not duly proved.

“In the said certificate, the place of issuance and date of issuance are not mentioned. Therefore, unless and until that salary certificate is duly proved by the authorities who has issued the same, it is difficult for this Court to rely on the said certificate at this stage.”

Further, the Court observed that the man has not argued that he is not an able-bodied person.

“Meager income of the husband cannot be a criteria to deny maintenance. If the applicant has married a girl knowing fully well that he is not competent to even fulfil his own daily needs then for that he himself is responsible but if he is an able bodied person then he has to earn something to maintain his wife or to pay the maintenance amount,” the single-judge said.

The Court also refused to accept the husband's claim that the wife was earning by running a beauty parlour.

“The applicant has not filed any document to show that the wife of the applicant is having any property where she can run a beauty parlour. The applicant has not filed any document to show that how much money she is earning from that beauty parlour. The matter is yet to be decided by leading evidence. Mere bald submission that wife is running a beauty parlour is not sufficient to deny interim maintenance to her, specifically when no document has been filed to show that either the wife of the applicant is running a beauty parlour in a shop owned by her or in a shop taken by her on a rent,” it said.

On the claim that the man has been dispossessed of his family properties, the Court said he is still residing with his father and public notice of dispossession was a camouflage.

The Court suspected that it may have been issued on the basis of legal advice. On the quantum of maintenance, the Court said it is a well established principle of law that a wife is entitled for maintenance under every statute.

“Since the court below has taken note of the maintenance awarded to the respondent under Section 24 of the Hindu Marriage Act therefore, it cannot be said that the trial court committed a material illegality by awarding interim maintenance @ Rs.4,000," the Court ruled.

Consequently, it dismissed the criminal revision petition.