Ker HC | Efforts of wife to maintain herself after desertion is no ground to deny payment of maintenance

Kerala High Court: Alexander Thomas, J. while hearing a revision petition, remitted a matrimonial case to the Family Court, Kalpetta for consideration and disposal afresh, after hearing both the parties.

Revision petitioner herein sought maintenance in Family Court, Kalpetta, from the respondent-husband. She was aggrieved by the judgment that dismissed her plea to seek maintenance on the ground that she had engaged in adultery, and also because she was employed and getting enough income to maintain herself. Hence, she filed the instant revision petition.

The petitioner contended that there was no visual or documentary evidence produced by the respondent to prove an act of adultery. The decision was passed on the basis of the respondent submitting one instance of lapse of virtue on the part of the petitioner. 

It was submitted before the Court that it is a common fact as held by the same court in Sandha v. Narayanan, 1999 SCC OnLine Ker 64 that to constitute an act of adultery, there should be a continuous course of conduct or living in the state of quasi-permanent union with the adulterer, and in the case of unchastity or a few lapses of virtue, it will not prevent a wife from claiming maintenance from her husband. As there was no evidence to prove the continuation of adultery, the revision petitioner had stated the judgment of the Family Court to be legally unsustainable.

It was further contended that the Family Court Judge failed to consider the status of her employment in light of Chaturbhuj v. Sitabhai, (2008) 2 SCC 316 that the term “unable to maintain herself” means the inability of the wife to maintain herself in the same manner in which she used to live with her husband, and will not take into consideration the efforts of the wife to maintain herself after desertion. The petitioner provided a certificate as evidence that she was not employed as staff but was kept as a data entry operator apprentice and was only given money to manage the expenses for bus charges, etc.

Owing to the aforementioned contentions, this Court directed the Family Court to reconsider the case in detail by hearing both the sides, and pass an order disposing of the case, without any delay within a period of three months from the date of production of a certified copy of this judgment. [Faseela v. Shafeek, RP (FC) No. 115 of 2019, decided on 23-05-2019]

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